C.M. NO,2258 of 2001 For the reasons mentioned in the application and also due to the fact that the writ petitioner has no objection that the applicants be impleaded as petitioners, the application is allowed and the applicants are impleaded as writ petitioneRs, C.M. Is disposed of.
C.M. NO,2259 of 2001
2. Dispensation sought for is allowed. C.M. Stands disposed of. C.M. NO,1710 of 2001
3. The Milk Man Producer Cooperative Society Limited, Rawalpindi through its President, Ch. Nazir Ahmad, instituted Writ Petition No,1441 of 2000 on 1-7-2000 against the respondents, Commissioner, Rawalpindi Division, Rawalpindi and others including Administrator, Municipal Corporation, Rawalpindi asking for the issuance of writ to the following effect:--
(i) Declaration of whole of the local area of Rawalpindi Municipal Corporation as prohibited Zone under section 65 of Punjab Local Government Ordinance, 1979 as illegal, unauthorised and of no legal effect.
(ii) Declaration that without establishment of proper Cattle Colony having all the required facilities, the prohibition of keeping the Buffaloes and Cows inside the City area/local area of Rawalpindi Municipal Corporation and evacuating the same and the forfeiture of Cattle and their confiscation in favour of State is also illegal, unauthorised and of no legal effect.
(iii) Declaration that the freezing of Bank accounts mentioned in para.7 of the Writ Petition by the order of respondent is illegal, unauthorised and of no legal effect, and that the authorised account holders can competently transact with said accounts.
4. Some Milkmen have also been impleaded as petitioners to the writ petition with the consent of the petitioner.
5. The writ petition came up for hearing on 3-7-2000 and the learned counsel for the petitioner made reference to subsection (4) of section 65 of Punjab Local Government Ordinance, 1979, to contend that unless and until the cattle colony was established by the Urban Local Council i,e, Municipal. Corporation, Rawalpindi for meeting the genuine needs of milkmen, any action on the part of the local council prohibiting the milkmen from carrying on the business of supply of milk within the limits of local council and prohibiting them from keeping and maintaining the cattle in the so-called prohibition zone, was illegal. The learned counsel also referred to the minutes of meeting of 13-5-2000 of the Administrator, Municipal Corporation, Rawalpindi with the milkmen and their representatives showing that the Administrator had promised the establishment of a cattle colony and of providing facilities therein before taking any coercive measure against the milkmen. It was argued that the plain reading of subsection (1) of section 65 of the abovesaid Ordinance showed that whole of the Urban Local Council cannot be declared as a prohibited zone and on the strength of the arguments of the learned counsel for the petitioners, respondents Nos.1 and 2 were directed to furnish report and comments within two weeks. The writ petition also accompanied C.M. No,2717 of 2000 seeking temporary injunction and on the said date, a restraint order was passed by this Court in the following terms: "3. ....The respondents are restrained from forcible evacuation and confiscation of the cattle in the limits of Municipal Corporation, Rawalpindi, in the meanwhile, subject to notice." The above application is still pending and has not been disposed of so far. For the purpose of disposal of the present application, I may also make a reference to an order dated 31-10-2000 passed by Justice Iftikhar Ahmad Cheema, when the writ petition was listed for hearing before the learned Judge as the respondents' side is relying on this order in support of their contentions. The order dated 31-10-2000 passed in the writ petition, referred to above, reads as follows:-- " This dispute requires settlement and not adjudication. I, therefore, with the concurrence of the parties and their learned counsel propose to constitute a Committee under the Chairmanship of Major (R.) Ziaul Haq, Commissioner, Rawalpindi Division, Rawalpindi to settle the dispute/controversy. The petitioners have already contributed a sum of Rs,1,26,72,000. This money is lying in three different banks. The Committee shall make real efforts for the purchase of suitable land for the petitioners to provide shelter for their livestock. The details shall be settled by the Committee within a fortnight. Two representatives,of the petitioners shall also be included in the Committee. The remaining members shall be nominated by the worthy Commissioner. The decision/verdict of the worthy Commissioner shall be final. The parties and their counsel have readily accepted these terms.
(2) To come up for further hearing on 15-11-2000."
6. The writ petitioner thereafter moved the present application (C.M. No,1710 of 2001) on 13-3-2001 alleging the violation of the restraint order dated 3-7-2000 passed by this Court in.C.M. No,2717 of 2000 and it was stated that the respondents had started a campaign of confiscation of Buffaloes from within the premises of members of the petitioners' society and till the date of the institution of the application, 253 buffaloes had been confiscated by the staff of Municipal Corporation, Rawalpindi under the direction of Administrator, Municipal Corporation, Rawalpindi and in view of the pronouncement made by the -Ion'ble Supreme Court in Bakhtawar and others v. Amin and others 1980 SCM R 89 it was prayed that the position as it existed on 3-7-2000 may be restored and the respondents be directed to release the confiscated buffaloes and not to violate the terms of the said order in future till the final disposal of the writ petition. In para. (2) of this application it is also mentioned that Criminal Original No,60-W of 2001 had also been filed by the petitioners against the respondents for the initiation of contempt proceedings for having violated the injunctive order passed by this Court. It may also be mentioned here that the abovesaid contempt petition is pending and is fixed for further hearing for 19th instant. Notice was issued by this Court to the respondents in the present application (C.M. No,1710 of 2000) on 14-3-2001 for next week. The application came up for hearing on 22-3-2001 and on the said date, the learned counsel for the petitioners informed that number of the cattle which had been forcibly evacuated till then had increased to 40,000/50,000 and it was also submitted that after forcible evacuation, such a large number of cattle had been scattered on the road-side around and in the suburbs of Rawalpindi and some of them were being confiscated as well and the forcible evacuation of cattle had resulted in the dislocation of large number of families who were obviously stationed with their.
Cattle on the road-side under the open sky and it was also argued that under the law the petitioners were entitled to the restoration of the position prevailing at the time of the grant of restraint order in their favour on 3-7-2000. It is being argued today that the number of cattle forcibly evacued has now crossed one hundred thousand. On 22-3-2001 the hearing of the application was, however, postponed on the asking of the learned Assistant Advocate-General as he wanted to obtain instructions from the respondents being represented by him. It may also be mentioned here that the learned Legal Advisor of Municipal Corporation, Rawalpindi in spite of notice to respondent No, 2 was not present and, therefore, the learned A.A.-G. Was directed to procure the personal attendance of Administrator, Municipal Corporation, Rawalpindi with record on the next date of hearing which was fixed for 28-3-2001. On the said date i,e, 28-3-2001, Liaqat Ali, Chief Officer, Municipal Corporation/Acting Administrator stated that the action of forcible removal of cattle from the limits of Municipal Corporation, Rawalpindi was carried out by him with the help of District Administration under the orders of the Commissioner, Rawalpindi Division, Rawalpindi. He further stated that in this regard, he was helped by Mr. Zahid Saeed, Deputy Commissioner, Rawalpindi, Mr. Asif Qureshi, Assistant Commissioner, Saddar, Rawalpindi and 4/5 Illaqa Magistrates whose names he did not know and was to supply later on. Mr. Muhammad Asif, Assistant Commissioner, Saddar, Rawalpindi was also present in Court on the said date and he straightaway refuted the allegation levelled by the Acting Administrator and submitted that he had no connection with the whole affair and he never issued any direction to the Acting Administrator for the removal of the cattle from the limits of Municipal Corporation, Rawalpindi. As the Acting Administrator had levelled the allegations against the Commissioner, Rawalpindi Division, Rawalpindi as well as the Deputy Commissioner. Rawalpindi, therefore, both of them were directed to appear personally with record on the next date of hearing and the hearing of the present application was postponed for 30-3-2001. On 30-3-2001 the hearing of the present application was adjourned for today as the learned Assistant Advocate-General as well as Sardar Muhammad Ishaq Khan, Advocate, the learned counsel representing respondent No,1 Commissioner, Rawalpindi Division, Rawalpindi requested for a short adjournment to enable them to file reply to this application.
7. Respondent No,1 through a written answer to present application has taken a stand that he was appointed as Commissioner, Rawalpindi Division on 13-2-2001 and that in compliance of order dated 31-10-2000, reproduced above, necessary steps were taken and thereafter on 9-3-2001 it was finally decided that the buffaloes be ousted from the Municipal Corporation area. In para. (2) of the answer it is stated that no buffalo is under confiscation and in para. (3) of the answer it is stated by him that all steps were taken in accordance with law and it is reiterated that they were taken in the light of the order dated 31-10-2000. It is also stated that the restraint order dated 3-7- 2000 passed by this Court stood merged in and modified by the order dated 31-10-2000 of this Court. Respondent No,1 has not submitted any reply to para. (4) of the application. The learned counsel representing respondent No,1 submits that the same was not needed as para.(4) is merely legal.
8. Respondent No,2 Administrator, Municipal Corporation, Rawalpindi has also submitted a similar written reply and has taken the same stand.
9. It is submitted by the learned counsel for the petitioners that the restraint order, referred to above, was passed by this Court on 3-7-2000, the same is still in field and it has not been withdrawn or modified and plain reading of order dated 31-10-2000, reproduced above, shows that certain steps were to be taken by a Committee under the Chairmanship of respondent No,1 for the settlement of the issue and the writ petition was directed to come up for further hearing on 15-11- 2000 and fortnight time was given to the said Committee for the purchase of suitable land for the establishment of cattle colony to provide shelter for the livestock and there is no mention of any withdrawal or modification of restraint order dated 3-7-2000, even none of the respondents applied for the withdrawal or modification of the restraint order, there is no implication in the order dated 31-10-2000 that the restraint order dated 3-7-2000 stood modified, the petitioners have also contributed a sum of Rs,1,26,72,000 as mentioned in the order dated 31-10-2000 also and on 31-10- 2000 the learned Judge constituted a Committee under the Chairmanship of'respondent No,1 and the said Committee was to purchase a suitable piece of land for the purpose of establishing a cattle colony and the minutes of the meeting of the above Committee show that out of twelve (12) sites, three (3) were declared as suitable by the said Committee for the establishment of cattle colony, the minutes of the second last meeting of the said Committee held on 18-12-2000 show that the developers were especially directed to ensure the compliance of the terms and conditions agreed upon between them and the Gawalas and for providing maximum facilities and early hand over of these sites to the Gawalas after completion so that the cattle are shifted to these new sites as soon as possible, These minutes have been relied upon by the respondents also and the copy of the same has been attached by respondent No,1 with his reply to this application and that nothing has been done so far, no site has been developed, no agreement has been arrived at. No sale has taken place, no possession has been delivered and no cattle colony has been established and suddenly on 9-3-2001 forcible evacuation of the cattle from the Municipal limits of Municipal Corporation, Rawalpindi was started forcing the petitioner to file contempt petitions for the conviction of the respondents for violation of the restraint order passed by this Court on 3-7-2000 and also forcing them to move the present application for the restoration of the position as it existed on 3-7-2000 by way of direction to the respondents to make arrangement for the return of the cattle and it is evident from the minutes of the meeting dated 9-3-2001 and it is admitted by the respondents Nos.1 and 2 in their replies as well that the eviction of the cattle started from 9-3- 2001 and that respondent No,1 has not decided anything so far, that he has neither approved the minutes and he has merely "seen" the minutes and no orders have been finally passed for the establishment of a cattle colony. Learned counsel for the petitioner has placed his reliance on Bukhtawar and others v. Amin and others (supra) wherein para. No,6 of the judgment it has been held by the'Hon'ble Supreme Court that "it is well-settled that when by contravening an injunction order the party against whom the order is passed has done something for its own advantage to disadvantage of the other party, it is open to the Court under its inherent jurisdiction to bring back the party to a position where it originally stood, as if the order had not been contravened. The exercise of this inherent power is based on the principle that no party can be allowed to take advantage of his own wrong in spite of the order to the contrary passed by the Court". On the basis of the principle laid down by the apex Court and on the basis of the inherent power of this Court, it has been argued that the petitioner has the right to be brought back to the position where it originally stood on 3-7-2000. Further reliance is placed on Lohrasib Khan v. Bahu Ali 1992 ALD 421(1)
(Lahore) wherein the learned Single Judge while relying on Bukhtawar and others v. Amin and others (supra) upheld the orders of the Courts below of restoration of possession.
10. Learned counsel for the respondent No,1 while opposing the application has submitted that the very first sentence of order dated 31-10-2000 takes away the rigor of the restraint order dated 3-7- 2000 and the said order whereby it was held that the decision/verdict of the worthy Commissioner shall be final, shows that the restraint order was no more in field and it merged with the order 'dated 31-10-2000 and, therefore,. The respondent No,1 had been given full authority to proceed and his verdict was final, therefore, the order dated 9-3-2001 passed by respondent No,1 under which cattle have been evacuated from the limits of Municipal Corporation, Rawalpindi is legal and valid, that the Committee constituted by this Court on 31-10-2000 proceeded further in the matter as directed by this Court, checked up 12 sites in the presence of the representatives of the petitioners, three sites have been found to be suitable and 90 milkmen have purchased the lands in those three sites, the milkmen themselves are not agreeing on the site and the delay in the establishment of the cattle colony is not because of inaction on the part of respondent No,1 or of the abovesaid Committee but the delay is occurring because the milkmen are now divided into three groups and that the Government is not under any obligation to purchase the land for the establishment of cattle colony and the public exchequer cannot he hurdoned with the said cost and the costs for the purchase of land for the establishment of cattle colony is to he borne by the Gawalas themselves and the Government can only help them and that the word "seen" written by the respondent No,1 at the end of the minutes of the meeting held on 9-3-2001 connotes his approval and that the evacuation of cattle and their eviction from the Municipal limits of Municipal Corporation, Rawalpindi was in accordance with law. The learned Assistant Advocate-General while rendering assistance to this Court in this writ petition has adopted the arguments advanced by Sardar Muhammad Ishaq Khan, Advocate, learned counsel representing respondent No,1. The learned Legal Advisor of respondent No,2 Municipal Corporation, Rawalpindi while adopting the same arguments has further submitted that the progress is being made for the early establishment of three cattle colonies.
11. The arguments of the learned counsel for the respondents have no force. A clear-cut restraint order was passed by this Court on 3-7-2000 restraining the respondents from forcible evacuation and confiscation of the cattle in the limits of Municipal Corporation, Rawalpindi. The said order is still in field. The argument that because of the interim order dated 31-10-2000 passed in the writ petition, the restraint order came to an end or stood merged with the said order is misconceived and ill-founded. By no stretch of imagination the order dated 31-10-2000 can be read as to mean the withdrawal or modification of the restraint order. In fact the plain reading of the said order shows that the Committee was formed for the resolution of the issue and for the early establishment of the cattle colony and for the purpose of the early establishment of cattle colony, the word of respondent No,1 was declared to be final for this purpose and instead of following the spirit of the order and instead of making efforts for the early establishment of cattle colony, respondent No,1 and other officials who are respondents in the connected contempt petitions proceeded with forcible evacuation of the cattle and now the lame excuse is being put forward that respondents thought that because of the passage of order dated 31-10-2000, the order dated 3-7-2000 has come to an end. In my opinion it is classic example of misuse of authority and the violation of a judicial order, by the Executives who have no respect for law. In Bukhtawar and others v. Amin and others (supra) the Hon'ble Supreme Court has provided us guidance and has reiterated the settled principle that when by contravening an injunctive order the party against whom the order is passed has done something for its own advantage to the disadvantage of the other party, the Court under its inherent jurisdiction can bring back the party to a position where it originally stood as if the cider has not been contravened. This salutary principle has been laid down so that no party is allowed to take advantage of his wrong in spite of the order to the contrary passed by the Court. I am, therefore, of the view that the milkmen are entitled to the restoration of the possession as it existed on 3-7-2000 because if the Court does not come to their aid and if the Court permits the violation of its restraint order by the Executive, the end result would be merely anarchy. The application is, therefore, allowed and the respondents Nos.1 and 2 are directed to make arrangements for the return of the whole of the cattle evacuated within twenty- four (24) hours, The milkmen who wish to bring their cattle back to their premises within the limits of Municipal Corporation, Rawalpindi, shall not be obstructed and stopped in any manner by the respondents and the said cattle shall be kept within the four walls of the premises of the concerned milkmen. It is, however, clarified that no cattle owner shall be permitted to keep the cattle on the road-side or in any street. C.M. Is accordingly disposed of.
12. The learned counsel for the respondents have requested for the early decision of the writ petition itself. Keeping in view the importance of the issue involved, I am of the opinion that the request is genuine and therefore, the office is directed to list the writ petition for final hearing in the first week of next month.