1. ZAFFAR HUSSAIN NIIRZA, J.-This Letters Patent Appeal raises an interesting question of law whether the Karachi Municipal Corporation (hereinafter referred to as K. M. C.) has power under the law to order removal of advertisement boards from private buildings which have been affixed without their permission.
2. The three appellants had fixed boardings/advertisement boards on top of certain private buildings either owned by them or with the permission of the owners thereof. These boardings/advertisement boards had not been fixed on any land or building vesting in the K. M. C.
3. It is common ground that the K. M. C. Had been charging tax on these boardings/advertisement boards. However, a notice appeared in the newspapers purporting to be from the K. M. C., stating that all boardings/advertisement boards fixed on private buildings should be removed by the owners by 31-8-1968, failing which they shall be removed y the K. M. C. Authorities. Upon inquiry the appellants were told that the notice had been issued pursuant to the orders passed by the Chairman. The appellant No. I was additionally served individually with a notice on 18-8-1968 under the signature of the Superin--tendent of Advertisements, K. M. C, Karachi, directing them to remove board--ings/advertisement boards belonging to them fixed on private buildings within 7 days of the receipt thereof, failing 'which the same were threatened to be removed by force. Aggrieved by the threatened action the present appellants along with one S. Ahmed Shah filed Suit No. 229/68 on the original civil side of this Court on 24-8-1968 against the K. M. C. Praying for a declaration that the latter has no authority or right to call upon the plaintiffs to obtain permission from the defendant for installing or for keeping boardings/advertisement boards on private buildings, and/or to order the removal of boardings/advertisement boards thus fixed. As a consequential relief the appellants prayed for a permanent injunction to restrain the K. M. C. From removing the boardings/advertisement boards installed or fixed on, private buildings, as detailed in Annexure "A" to the plaint.
4. The respondent K. M. C. Resisted the suit and besides raising the legal objections as to the maintainability of the suit and misjoinder of the causes of action, inter alga repudiated the plea set up by the appellants and asserted that the K. M. C. Was fully empowered under the law to remove the boardings/ advertisement boards for the reason that none of appellants bad obtained any licence to display the same. It was further submitted that as a matter of policy in the larger interests of the community the competent authority had issued notification in the press that in future all huge and unwieldy, unlighted boardings would be totally banned. Finally it was contended that disobedience to the notice for removal of the offending sign-boards is a penal offence and the appellants would be liable to prosecution under the statute.
5. On the pleadings of the parties several issues were framed but since the controversy is reduced only to the question of law, as would appear hereinafter, it is not necessary to mention the issues here. The parties did not lead any evidence, and after hearing the counsel appearing for the parties the learned Single Judge (Ghulam Rasool Shaikh, J., as he then was) dismissed the suit by his impugned judgment dated 22-12-1972. The present Letters Patent Appeal is directed against the aforesaid judgment of the learned Single Judge.
6. The learned Single Judge in his judgment has elaborately referred to the history of the legislation pertaining to the question and has traced back the origin of the power of prohibition and regulation of bill posting, to the rules for regulation of streets framed under section 236(21) (f) of the City of Karachi Municipal Act, 1933. Rule 3 of these Rules enjoined every person to obtain written permission of the Chief Officer for erecting, fixing or retaining any sky sign, and in case no such permission was obtained the K. M. C. Was authorised to require the owner or the occupier of the building to take down and remove such sky sign. The expression "sky sign" was defined to include advertisement. The learned Judge after examining the relevant statutes came to the conclusion that the rules framed under the City of Karachi Municipal Act were superseded, upon the repeal of the said Act by the Municipal Administration Ordinance, 1960 and replaced with Street Rules, 1962 framed on 12-10-1962 under the said Ordinance. The relevant rule regulating the advertisement in these Rules was Rule No. 11(3) which prohibited fixing or causing to be fixed any bill, notice, placard or other means of advertisement against or upon any street or any building etc. Unless otherwise authorised under bye-laws made by the Municipality.
7. Section 115 of the Municipal Administration Ordinance, 1960 (herein--after referred to as the Ordinance) which la)s down that every act or omission specified in the IInd Schedule to Ordinance shall be an offence under the Ordinance and the learned Judge referred to Items Nos. 3 and 43 of the said Schedule. In Item No. 3 the doing of an act without licence or permission when the doing of such act requires a licence or permission under the provisions of Ordinance, or the rules or bye- laws is an offence. Under Item 43 fixing any bill, notice, placards or other paper for means of advertisement against or upon any building or place other than the places fixed for the purpose by the Municipal Committee. Is also an offence. The Ordinance was repealed by Sind People's Local Government Ordinance, 1972 with effect from 18-2-1971 and the same provisions as are contained in section 115 and Items 3 and 43 of the repealed Ordinance were re-enacted in identical terms in the last-mentioned Ordinance. No fresh rules were however, framed on the subject in question and therefore by virtue of the saving provisions contained in section 4 of the 1972 Ordinance the street rules framed under the repealed Ordinance continued in force. On the basis of rule 11(3) of the Street Rules, the learned Single Judge held that sky signs could not be installed or continued without the permission of the' Municipality and further held that a licence was necessary for the purpose. It was contended before the learned Single Judge that no bye-laws were framed under the Ordinance as required by clause 3 of rule 11 of Street Rules and therefore no permission was required to be obtained from the K. M. C. He however, took the view that the Rules require a permission and the absence of the bye-laws was therefore immaterial. But the learned Judge, nevertheless, came to the conclusion that in absence of the bye-laws empowering K. M. C.
8. Authorities in that behalf, the K. M. C. Did not have the power to remove the advertisement boards or boardings. Thus the learned Single Judge declined to grant the relief of declaration that no permission is required for installing hoardings, advertising boards but despite his conclusion that the K. M. C. Has no power to remove the same, refused the relief of injunction in exercise of this discretion on the ground that the plaintiffs having no right to install the advertisements which .Act is punishable under the Ordinance, cannot be protected by the assistance of the Court as that would amount to perpetuating an illegal act. In pursuance of these findings and conclusions the suit of the appellants was dismissed. The appellants now seek to challenge this decision in the present Letters Patent Appeal.
9. PLD 1967 SC 241). In this case the levy of terminal tax under rule 5-B of the Terminal Tax Rules under the Act of 1933, was challenged as ultra wires after the repeal of the Act by the Ordinance.
10. The K. M. C. Sought to support the validity of the tax with reference to the saving clause contained in section 4 of the Ordinance which saved the operation of the rules, regulations and bye-laws etc. Made under the repealed enactments. However, their Lordships repelled this contention on the ground that the power of taxation given under section 33 of the Ordinance was confined to the taxes mentioned in the Third Schedule to the Ordinance, which did not specifically include the terminal tax and therefore, the Terminal Tax Rules not being consistent with the provisions of the Ordinance were not saved by the saving clause. In this regard it was observed that "in so far as section 33 and Third Schedule to the Ordinance consciously omits the provisions for the imposition of the terminal tax, which were to be found in section 96 of the Act of 1933, the legitimate inference that can be drawn is that the Ordinance does not at all contemplate the imposition of such a tax and, therefore, the Terminal Tax Rules are not only inconsistent with the legislative intent of the Ordinance, but can also not, by any means, be deemed to have been made under the provisions of the Ordinance". It will be observed that the conclusion arrived at by their Lordships was based upon the absence in the new Ordinance of a power to impose a tax of the nature in question. Obviously therefore, the rules relatable to such a tax could not survive the repeal of the Act of 1933 which specifically granted the authority to impose such a tax for which the rules were framed under the repealed Act. The position as to the Street Rules however, is substantially different. Whereas the rules under challenge in the cited case before the Supreme Court related to the powers of taxation granted to the Municipal Corporation, the question in the present case relates to the functions of the Corporation. As observed earlier the Street Rules were framed under section 121 of the Ordinance which confers rule-making powers upon the Government for carrying out the purposes of the Ordinance generally and in particular for matters enumerated in the Fourth Schedule to the Ordinance. Item 38 in this Schedule relates to `streets' and clause (f ) thereof mentions the following; "(f ). ----The definition and prevention of nuisances and offences pertaining to streets."
11. It would therefore follow that it was competent for the Government' in its rule-making power to frame rules on the subject of streets whichincludes the definition and prevention of nuisances and offences pertainingto streets. Rule 11 of the Street Rules, thus framed, as its heading indicates, relates to this particular matter regarding nuisances and offences pertaining to streets. This Rule is divided into seven clauses. Clause (1) prohibits the cutting down of any tree, erecting or demolishing any building, etc. Which is likely to cause obstruction, danger or annoyance to any person using the street, without previous permission of the Chairman of the Municipal Committee.
12. Clause (2) prohibits the defacing or disturbing any direction --post, lamp etc. In a street. Clause
(3) which is relevant in the present case may be reproduced In extenso as under ;---- "(3) No person, shall unless otherwise authorised under bye-laws made by the Municipal Committee, affix or cause to be affixed any posting, bill, notice, placard or other paper or means of advertisement against or upon any street or any building, wall, tree, board, fence or pale so as to be visible from any street, or write upon, soil, deface or mark any such building, -wall, tree, board, fence, or pale with chalk or paint or in any other way whatsoever."
13. Then follow clauses (4), (5) and (6) which relate to prohibition on affixing inscriptions or stencile on houses and buildings etc. Visible from the street, prohibition of throwing or depositing any refuse on a street, and a prohibition, except with the permission of the Chairman, for tethering animals, parking vehicles, stocking goods, breaking up or digging or encroaching upon a street etc. The last clause viz. Clause (7) may again be reproduced as under :--- "(7) The Chairman may from time to time cause the streets in the Municipality to be surveyed with a view to detecting nuisances pertaining to streets. The Chairman shall take such action as may be necessary to abate the nuisance in each case, including the summary removal of the cause of nuisance."
14. On an examination of the above provisions of the various clauses of rule 11, it will be clear that, by the doctrine of pith and substance, the rule in question pertains to streets and therefore was within the rule-making power of the Government conferred under section 121 read with item 38 o the Fourth Schedule to the Ordinance. There is thus no room in this case for attracting the dictum laid down by their Lordships of the Supreme Court in Pakistan Tobacco. Company's case, for, in the present case there is a direct provision in the Ordinance empowering the framing of the rules on the subject of streets.
15. It was, however, submitted by Mr. Fazeel that section 286 of the City of Karachi Act, 1933 which pertained to the rule-making power specifically refers in clause 21 to "the prohibition and regulation of bill-posting and sky signs" and since the Ordinance contained no parallel provision conferring rule-making authority in respect of this subject, it would be legitimate to infer that the power to frame rules regarding bill-posting and sky signs was consciously omitted and taken away. I find no substance in this contention. The perusal of section 286 of the Act of 1933 will show that various subjects were enumerated therein, lit relation to which rule making power was conferred on the Provincial Government. Each subject is indicated by a separate number as an independent item and in some cases, the item is sub-divided into clauses to further indicate the details of the subject dealt with. Clause 21, thus deals with the subject of 'streets' which among other things contains sub-clause (j) relating to bill-posting and sky signs upon which reliance has been placed. It cannot therefore be argued that the prohibition and regulation of bill-posting and sky signs is an independent subject for framing rules but as it is a sub-clause contained in clause 21 relating to streets, the obvious intent was to provide for rule--making power in relation to bill-posting and sky-signs so far as these pertained to streets. The same object has been achieved in the Fourth Schedule to the Ordinance by the use of the words "the definition and prevention of nuisances and offends pertaining to streets". Additionally it has been shown to us by the learned Additional Advocate-General that the regulation and control of bills, advertisements, name-boards, sign- boards and sky-signs have been declared to be appropriate matters for administration by Municipal Committees, under Notification No. SOI (LC)-17-59, dated 7-6-1961 by the Governor of West Pakistan in exercise of power vesting in him under section 18(b) of the Ordinance. Section 18 provides that a Municipal Com--mittee shall undertake all the functions given in detail in Part 1V of the Ordinance as are required to be undertaken by the Municipal Committee and under clause (b) of the section the Municipal Committee may undertake such other functions as are declared by the Government to be appropriate matters for administration by Municipal Committee generally or by any particular Municipal Committees. Part IV of the Ordinance includes Chapter VII relating to streets. This being the position even if the subject of 'streets' is not construed wide enough to include the regulation of billposting and sky signs, the Municipal Committee by virtue of the Notification under section 18 (b) of the Ordinance referred to above, was fully empowered to regulate and control the display of bills, advertisements, name-boards and sky signs. The challenge offered to the vires of the Street Rules, therefore is not well-founded. The further submission of the learned counsel in regard to the validity of the Street Rules was with reference to the provisions of People's Local Government Ordinance, 1972 which replaced the Ordinance on its repeal. But there is no material change in the provisions of the last-mentioned Ordinance and all the relevant provisions of the repealed Ordinance have been re-enacted in substantially identical terms. Section 14 of the 1971 Ordinance is identical with section 18 of the Ordinance in material particulars. Schedule II of the Pew Ordinance separately enumerates the functions to be performed by the Karachi Metropolitan Corporation and People's Municipalities which includes the subject of 'streets'. Item 3 under the heading of 'streets' in this Schedule relates to general provisions about streets and clause (4) thereof provides that the People's Municipality may by bye-laws- define nuisances and offences with regard to streets, and provide) for their prevention and abatement. It would therefore appear that the Street Rules were preserved in force notwithstanding the repeal of the Ordinance by virtue of saving provisions contained in section 4 of the 1972 Ordinance. I therefore, agree with the view taken by the learned Single Judge) that the rules cannot be assailed as ultra vires.
16. PLD 1957 Kar. 854) the price control imposed on sale of mutton and beef was questioned and in this connection Article 12 of the 1956 Constitution (which is equivalent to Article 18 of the present Constitution) came under consideration. It was observed by Qadeeruddin Ahmad, (as he then was). That it is commonplace to state that complete prohibition is not included in the idea of `regulation', but it is also equally true to say that the exercise of some restraint is implicit in it. How much of restriction is consistent with the idea of regulation can be determined only with reference to the object with which a situation, things or actions are regulated. It is the purpose of regulation which can provide the measure of permissible restraint.
17. I am therefore, unable to agree with Mr. Nazir Khan that what was intended to be a regulatory power could be converted by mere inactionon the part of the K. M. C. To frame the bye-laws, into a power of prohibition. In this context however, it is necessary to notice the submission of the learned Additional Advocate-General who assisted us in this case on Court Notice. Relying on the case of M. U. A. Khan v. M. Sultan (PLD 1974 SC 228) the learned Additional Advocate-General submitted that the failure on the part of the K. M. C. To frame the necessary bye-laws cannot be construed as having the effect or rendering a power of prohibition conferred under rule 11(3) upon the K. M. C.
18. Nugatory or unworkable. In the cited case their Lordships considered the validity of the appointment of the appellant before them as Chief Inspector of Mines, West Pakistan. It was contended before their Lordships that no regulations having been framed by the Provincial Government under section 29 of the Mines Act, the Chief Inspector of Mines could not be appointed at all on account of tae failure of Provincial Government to prescribe the qualifications for the appointment. The argument was repelled by their Lordships on the ground that section 4 of the Act empowered the Government to appoint a duly qualified person to be the Chief Inspector of Mines and therefore, effect could be given to the command of the Legislature even without the framing of the regulation under section 29 of the Act pertaining to qualifications for the appointment. In this connection their Lordships observed that the delegated power to specified or designated authorities to make regulations under a statute, is generally in the nature of an enabling provision, intended to further the objects of the statute, and not obstruct and stultify the same. On this reasoning their Lordships held that the failure to frame the necessary rules and regulations, cannot be construed as having the effect of rendering the statute nugatory and unworkable. It would therefore appear that where the statute confers a power upon a specified authority to be exercised and leaves the matter of details for the exercise of the power to be determined by framing of rules or regulations, the absence of such rules cannot have the effect of denuding the authority of the power conferred by the statute. Apart from other distinctions that exist between the facts of the cited case and the present case, if the principle postulated in the decision is extended to the present case, the result would be that the power to regulate the advertisements will be available with the Municipal Committee notwith--standing the absence of bye-laws. But it cannot be argued that the prohibitory parts of rule in question would alone be operative denuding the Municipal Committee of the power to authorise the affixing of advertisements. Accordingly the result would be the same.
19. "Item No. 3.-Doing an act without licence or permission when the doing of such act requires a licence or permission under any of the provisions of this Ordinance, or the rules or bye-laws.
20. Item No. 43.-Fixing any bill, notice, placard or other paper or means of advertisements against or upon any building or place other than the places fixed for the purpose by the Municipal Committee.
21. It was contended on behalf of the K. M. C. That the act of fixing bills and advertisements in question without permission of the K. M. C. Was, therefore, an offence under both the aforesaid items as neither any licence was obtained nor the advertisements were fixed in places fixed for the purpose by the Municipal Committee, I do not find any substance in this contention. As regards Item No. 3_ of the Second Schedule, an act without licence or permission would be an offence, as is clear from the language of the item, only when the doing of such act requires a licence or permission under any of the provisions of the Ordinance, or the rules or bye-laws. No provision of the Ordinance has been shown whereby licence for axing the advertisement is required. Admittedly there exist no bye-laws providing for the obtaining of licence or permission for the purpose. As regards the Rules, Rule 11 (3) does not in terms prescribe the obtaining of a licence but merely provides that bye-laws shall be framed for authorising the fixing of. Advertisements. It could be possible for the K. M. C. To provide for licence or permission to be obtained for the purpose in the bye-laws that are yet to be framed. But for the present no such bye-laws exist which could be framed. But for the present no such by-laws exist which could be said to require such permission. A comparison of clause (3) of rule 11 with other clauses of the rule shows that the rule itself did not contemplate the requirement of licence or permission. For instance, clause (1) provides for the previous permission in writing of the Chairman. For cutting down any tree, erecting or demolishing any building, etc. Similarly clause
(2) provides for permission of the Chairman for disturbing any direction-post, land-post, land, etc. Clause (6) also provides for permission of the Chairman for tethering animals in street and doing other things mentioned therein. By contrast, clause (3) does not specify or designate any authority for granting permission to affix advertisements ; indeed no such provision in the case of advertisement has been made for obtaining permission or licence. It was therefore left to the discretion of each Municipal Committee to provide for such licence or permission, or merely authorise generally the places for fixing advertisement. Until, therefore, the Bye-laws make a provision for requiring a licence or permission, clearly, Item No. 3 referred to above would not be attracted. As regards Item No. 43, the plain reading of its provisions clearly makes out that fixing of bills and other means of advertisements would be an offence only when places are fixed for the purpose by the Municipal Committee. It is not the case of the K. M. C. That the boardings/advertisement-boards were ordered to be removed in the present case because they were fixed in places other than those prescribed by the K. M. C. For, no such places have been fixed for the purpose. The items of the Second Schedule relied upon, are therefore not attracted in the present case.
22. The learned Single Judge had reached the conclusion that the Municipal Committee has no power in the present state of law to order removal of the allegedly offending boardings/advertisement- boards. He was, however, of the view that installation or continuation of sky signs without permission will amount to an offence within the meaning of section 115 of the Ordinance and would be punishable under section 116 thereof. Consequently, although he reached the conclusion that the Ordinance does not provide for removal of the offending sky signs etc., he declined to grant the relief of injunction on the ground that in the circumstances of the present case the equitable remedy could not be granted. It would be best to set out in his own words the reasons for refusal of the relief of injunction; "So the chief consideration in this case would be whether the plaintiff in the present case had any right and that right had been threatened to be invaded. In this the plaintiff has failed. I have already held that the installation or the continuation of the sky-signs cannot be allowed without the permission of Municipality and in absence of the permission such ad act amounts to an offence, punishable under the Ordinance. It is a settled position that a wrongful act cannot be protected by the assistance of the Court: "
23. Since, however, I have reached the conclusion that affixing advertisements in. The manner done in the present case will not attract the penal provisions of the Ordinance, until the bye-laws expressly provide for obtaining of a licence or permission, the basis on which the learned Single Judge refused to grant the relief of injunction disappears. If the appellants are entitled to do an act without incurring the liability of penal action under the Ordinance, R the prohibition on doing of such act is liable to be restrained by injunction. It was clarified by the learned counsel for the appellants that the right of the K. M. C. To charge fees for installing or keeping hoardings/advertisement-boards on private buildings is not disputed. In fact the learned counsel referred us to Annexure 3 to the Memo. Of Appeal and submitted, that all the payments were cleared before the date of the impugned judgment.
24. For the foregoing reasons, I would allow this appeal and decree the suit of the appellants as prayed. Before parting with this case however, I am constrained to observe that the present controversy could have been avoided if the K. M. C. Had framed the necessary-bye-laws under rule 11(3) of the Street Rules. Their learned counsel informed us that the draft bye-laws have been submitted to Government since quite sometime and were under consideration. It would be in the interest of the K. M. C. To urge for the earlier disposal of the matter and finalize the bye-laws as soon as possible.