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SAKINA PETITIONER VERSUS THE MUNICIPAL COMMITTEE, KHAN PUR

RESPONDENT

1961 PLD 612

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Petition Accepted

W.P (Lahore)

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Shabir Ahmad and S. A. Mahmood, JJ

Writ Petition No. 83 of 1961

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Date of Decision: 09/03/1961
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JUDGMENT
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SHABIR AHMAD, J.--?Khanpur which is a town in District Rahimyar Khan of West

Pakistan, has a Municipal Committee created under the Municipal Adminisration Ordinance
(X of 1960), (to be hereinafter referred to as the Ordinance), which was promylgated by the
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President of Pakistan on the 11th of April 1960. Shortly after it came into being, a member
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of this Municipal Committee presented a resolution that as the brothel of Khanpur is

situated in the heart of the town and thereby affects the morals of people, and as a master
plan was being prepared as well as a stadium was to be built just opposite, the place where
the brothel was situate, the Municipal Committee should under Entry No. 58 of the Second
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Schedule to the Ordi nance, pass a resolution that no one could indulge in prostitution in the
municipal limits of Khanpur. This resolution which was to come into force on the 1st of
February 1961 authorized the Chairman of the Committee to take legal action against
persons who contravened the resolution. . ' On the basis of this resolution, a public notice
was issued, and copies of it were served on the prostitutes carrying on their business in the
brothel at Khanpur who were informed that they could not carry on their business of
prostitution within the municipal limits of Khanpur it being added that persons contravening
this direction, which purpported to have been issued under Entry No. 58 of the Second
Schedule to the Ordinance, would be proceeded against under section 115 of the Ordinance.
On the 30th of January 1961, Mst. Sakina, who was practising the profession of prostitution
in the brothel at Khanpur, presented this petition with a view to obtaining an appropriate
writ to counteract the effect of the resolution of the Municipal Committee, on the basis of
which notice had been served on her. The written statement put in on behalf of the
Municipal Committee, Khanpur, the sole respondent in the petition, said, inter alia that it
was necessary to remove the brothel from the town which was extending and was shortly to
be given municipal amenities especially a stadium near about the place where the brothel is
situate, and that the notice being perfectly valid in law, no writ could be issued to nullify it.

2. The main question that requires determination is whether the resolution of the Municipal
Committee, on the basis of which the impugned notice was issued, was valid. As mentioned
al ready while the petitioner said that the resolution of the Municipal Committee went
beyond the powers conferred on that body, the respondent Committee claimed that it acted
entirely within is jurisdiction and the resolution and the notice based thereon could not be
challenged on the ground of lack .of jurisdiction. The Committee also pleaded that, in the
circumstances of the case, the resolution and the notice based thereon were for the welfare
of the citizens of Khanpur and should not be disturbed. It is not necessary for the purposes

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of the present case to determine whether the action proposed by the respondents
Committee is for the welfare of the citizens of Khanpur, because all that the Court is
concerned with for determining whether or not a writ should issue is the consideration of
the question of jurisdiction of the respondent Committee. If the order of the Municipal Com
mittee is without jurisdiction, the fact that it may work' to the benefit of the residents of the

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town will not clothe it with legality and on?the other hand the order will be valid if it is
allowed by law notwithstanding the fact that it does not benefit the residents of the town,
for whose welfare the Municipal Committee was brought into being. I am clear in my mind,
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therefore, that the only question on which attention should be focussed in the present case
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is whether or not the law gives the Municipal Com mittee the power to pass the impugned
resolution and to issue the impugned notice.

3. Some of the provisions of the Ordinance, to which a reference will be made in tie sequel,
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are sections 18, 106, 115, 121, Entry No. 58 of the Second Schedule to the Ordinance,
which Schedule is headed : . "Offences under the Ordinance," (see section 1 15), and Entry
No. 45, of the Fourth Schedule which' is headed : "Matters respecting which Rules may be
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framed" (see section 121). The above provisions of law read as follows :?
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"18. Subject to rules, and such directions as the Government may from time to time give,
and within the limits of the Funds at its disposal, a Municipal Committee shall undertake
such of the functions given in detail in Part IV as are required to be undertaken by
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Municipal Committee and may under take?

(a) all or any of the functions so given which may be under taken by a Municipal Committee,
and

(b) such other functions as are declared by the Government to be appropriate metters for
administration by Municipal Committees generally or by any particular Municipal
Committee."

"106. A Municipal Committee may, and if so required by the Controlling Authority, shall,?

(a) establish, manage and maintain welfare homes, asylums, orphanages, widow homes and
other institutions for the relief of the distressed ;

(b) provide for the burial and burning of paupers found dead within the Municipality at its
own expense ;

(c) adopt such measures as may be prescribed for the prevention of beggary, prostitution,
gambling, taking of injurious drugs and consumption of alcoholic liquor; juvenile
delinquency and other social evils ;

(d) organize social service volunteers ;

(e) adopt such measure as may be prescribed for the pro motion of the welfare of backward
classes, families of the persons serving in the Armed Forces, and women and children ; and

(f) adopt any other measures likely to promote social welfare." '

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"115. Every Act or omission specified in the Second Schedule shall be an offence under this
Ordinance."

"121. (1) The Government may make rules to carry on of the purposes of this Ordinance.

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(2) In particular and without prejudice to the generality of the foregoing power, such rules
may provide for all or any of the matters enumerated in the Fourth Schedule, and all
matters incidental, consequential and supplemental thereto."
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Entry "58 of the Second Schedule?Keeping a brothel or prac tising prostitution in such area
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as may be declared by the Municipal Committee to be the prohibited area."

Entry "45 of the Fourth Schedule.?(a) The manner in which the welfare aspect of the
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functions of Municipal Com mittee shall be emphasised.

(b) The registration of social service organizations, and the inspection and co?ordination of
such organizations.
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(c) The framing and implementation of social service schemes.

(d) The giving of financial assistance to social service organizations. .

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(e) The organization of social service volunteers, their training, conduct, discipline, powers
and duties.

(f) The organization of Social Welfare Department under Municipal Committee, and the
definition of the functions and powers of such departments.

(g) The appointment of Social Welfare Officers and the prescription?of their duties and
powers.

(h) The making of schemes for the relief of persons in dis tress and the enforcement of such
schemes.

(i) The mitigation and prevention of social evils.

(j) All other matters necessary for the promotion of social welfare."
4. The learned counsel for the petitioner contended that the impugned resolution and the
impugned notice based thereon aimed at complete stoppage of prostitution within the
municipal limits of Khanpur, a subject which he contended fell within clause (e) of section
106 of the Ordinance and, therefore, the Municipal Committee could have taken action only
if the Pro vincial Government had made rules with regard to the matter. He pointed out that
clause (c) of section 106 made it clear that those measures alone could be or; if the
Provincial Government so directs, must be taken by a Municipal Committee created under
the Ordinance which had been prescribed and he drew attention to subsection (32) of
section 3 of the Ordinance which says that "prescribed" means prescribed by rules made
under the Ordinance. Learned counsel for the petitioner asserted that Government had not
made any rules for prevention of prostitution and at any rate the respondent Committee had
not purported to act on any such rules if they existed, but on its own initiative and for this

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reason the impugned resolution and the impugned notice which followed it had no validity
in the eye of law. If the matter is gov erned by clause (c) of section 106 of the Ordinance,
the contention of the learned counsel for the petitioner would not be easy to refute and' one
has, therefore, to examine the contention of learned counsel for the petitioner that section

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106 of the Ordi nance, and none of its other provisions, had application to the case. Mr. S.
M. Zafar, learned counsel for the respondent, who stated the case of his client with his usual
thoroughness and clarity, contended that the matter under consideration was not governed
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by section 106 of the Ordinance but by Entry No. 58 of the Second Schedule to the
Ordinance. He argued that Municipal Committees had, by implication, been given the power
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to stop prostitution even if no rules on the subject be made by the Provincial Government,
because if that were not so, Entry No. 58 of the Second Schedule which made it clear that
any person who kept a brothel or practised prostitution in such area as had been declared
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by the Municipal Committee to be a pro hibited area was liable to punishment mentioned in
section 115 of the Ordinance, would be meaningless. He pointed out that section 18 of the
Ordinance made it clear that it was the duty of Municipal Committees to undertake such of
their functions as are detailed in Part IV of the Ordinance and as section 106 of the
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Ordinance which occurs in Part IV contains a provision to deal with prostitution, the
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respondent could pass the impugned resolution and issue the impugned notice.

5. Clause (c) of section 106 of the Ordinance and Entry No. 58 of the Second Schedule of the
Ordinance are not as irreconcilable as they would at first sight appear to be. As I read it,
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Entry No. 58 of the Second Schedule, by implication, confers on the Municipal Committee a
power to declare that any part of the Municipal Committee was a prohibited area for the
purposes of prostitution. The words "stich area" which occurance in Entry No. 58 of the
Second Schedule of the Ordinance were, in my view, used in order to limit the powers of the
Municipal Committee to disallow the carrying on of prostitution or keeping of brothels in
parts of the Municipal area and were not intended to confer on Municipal Committees the
power to ban prostitution or keeping of a brothel in the whole area under the jurisdiction of
the Municipal Committee. Before the Ordinance the law was to the same general effect as
would appear from section 152 of the Punjab Municipal Act, 1911. If this interpretation is
placed on the words. used I in Entry No. 53, the provisions contained in clause (c) of section
106 and Entry No. 58 of the Second Schedule will not appear contradicting each other. It is
a well accepted canon of interpretation of statutes that Courts are to presume that the
law?giver has used each word with a purpose and the same canon applies when a Court has
to interpret the language used in an Ordinance which measure, though it may not receive
the same consideration before being brought on the statute book as a measure passed by a
Legislature does, has in law the same force and is governed by the same method of
interpretation as an Act passed by a legislative body.

6. To a layman it may appear strange that while Entry No. 58 of the Second Schedule of the
Ordinance allowed the Municipal Committee to prohibit prostitution in some specified parts
of the municipal area under it, the Committee should not be competent to prohibit
prostitution in the entire area within its jurisdiction, but there appears to be a purpose in
not permitting a Municipal Committee to take measures to abolish prostitution altogether in
the area under its control. Many people have described prostitution as the oldest profession
in the world and they cannot be said to be wrong. It must be clear to all those of the
law?given who make laws, keeping the circumstances in view and not merely for

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sentimental reasons, that a law which aimed at abolition of prostitution altogether will
defeat its own purpose and will spread immorality, which in places where there are
prostituted is mostly confined to the areas where they practise their trade, to a number of
other places, and was likely to result in producing prostitutes on a smaller scale but in
larger numbers. It was evidently for this reason that the question of complete abolition of

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prostitution was left to the Government which could make rules for the purpose. It may be
that time will come when it would be possible to abolish prostitution altogether?though I
might mention that I consider the abolition of prostitution an impossibility?but it is clear
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from the pro visions of the Ordinance, from which the respondent Committee gets its
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powers, that it has not been left to a Municipal Committee to embark on what may appear to
it a laudable purge until the Government has framed rules which aimed at such a purge.
Learned counsel for the respondent said that the fact that a Municipal Committee may
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direct that no one shall practise pros titution within the area under its jurisdiction cannot
amount to an order abolishing prostitution because the order of the Muni cipal Committee
will have no binding force outside the limits of its jurisdiction, but this contention does not
appeal to me. If the intention of the law?giver 'by enacting Entry No. 58 of the Second
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Schedule of the Ordinance had been to authorise a Munici pal Committee to give directions
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for the abolition of prostitution from the whole area in its jurisdiction, the words "such area"
which occur in that Entry would not have been used. Another weightly argument against the
power which Mr. S. M. Zafar claimed for his client, is the language employed in clause (c) of
section 106 of the Ordinance which shows that steps for prevention of prostitution can be
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taken only if measures in that behalf are prescribed by Government. The language in which
clause (c) of section 10,6 of the Ordinance is couched is unambiguous and 'requirements of
the clause cannot be overlooked especially as it is only in this clause and clause (e) that it
has been provided by the section that measures prescribed for the purposes men tioned
therein may be taken by Municipal Committees and such measures shall be taken by them if
Government directs them to do that. Entry No. 45 of the Fourth Schedule to the Ordi nance
enumerates matters about which rules are to be made by Government and clause (i) of the
Entry would clearly apply to such matters as prevention of prostitution or its confinement to
certain places only, while Entry No. 58 of the Second Schedule empowers the Municipal
Committees to direct that brothels shall not be kept and prostitution shall not be practised
in certain area within the boundaries of their jurisdiction. The relevant provisions of the
Ordinance make it clear that while the Govern ment was given unlimited powers for
combating prostitution the powers of the Municipal Committees for combating the evil were
limited to the extent indicated above.
7. In view of what I have said, 1 would issue a writ that the impugned resolution passed by
the Municipal Committed, Khanpur, and the notice based on that resolution cannot be
enforced by the Municipal Committee and would grant the petitioner her costs of this
petition.

S. A. MAHMOOD, J.?I agree.

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