Find a Lawyer

Regular Second Appeal No. 245 of 1960, decided on 24th November 1960.

‑"In any specified part"‑Words not confined to "a street, Mohalla or any other small area"‑Municipality not empowered to enforce prohibition in "entire area"‑Some area should remain excluded from prohibition‑Section 152 does not require that such area should not be unbuilt.

The words "in any specified area" occurring in section 152, Punjab Municipal Act, 1911, do not mean "only a street, Mohalla or any other small area of the Municipality". To confine the meaning to "only a street, Mohalla or any other small area" would be to read into these words limitations which are not to be found there. The words are not susceptible of this interpretation.

The intention of the legislature appears to be that whereas the Committee is not empowered to include the entire area for prohibition, it can certainly specify any part of the Municipality for such purpose. .end this does not mean that only one street or one Mohalla can be specified. Having regard to the needs an:: requirements, the Committee can demarcate the part of the Municipality, which it wants to save from the pernicious influence of the prostitutes. Whether it involves one street, one Mohalla or several streets and several Mohallas, it will still remain a specified part of the Municipality. The only restriction which appears to be placed on the Committee is that soma portion of the Municipal area should remain excluded from the prohibition The power vested in the Committee is a continuing one, and can be exercised repeatedly, and by this process the Committee can prohibit the residence of the prostitutes in the various parts of the Municipality.

Mehtab Jan v. Municipal Committee, Rawalpindi P L D 1958 Lah. 929 ref.

Mst. Muhammadi v. Emperor A I R 1932 A1. 110 and Mst. Naziran v. Emperor A I R 1932 All. 537 considered.

Where about half the Municipal area was prohibited, and tic area left open for residence of prostitutes was "mostly unbuilt'' belonging either to evacuees or to Government.

that that circumstance had no bearing on the interpre tation of section 152, Punjab Municipal Act, 1911. There was no provision of law in the Punjab Municipal Act which requires: the Committee to provide alternative accommodation to the prostitutes.

‑Omission to frame issue on particular point‑Parties adducing evidence‑ Point discussed in Courts below‑Separate issue not claimed in trial Court‑Not raised in grounds of first appeal‑Omission does not vitiate finding on point‑ [Badrul Islam Ali Khan v. Mst. Ali Begur, I L R 16 Lah. 782; Mehr Bakhsh v. Maula Dad P L D 1951 Lah. 113; Dulhin Rajkishore Kuer v. Sheikh Muhammad Qayum 198 I C 890; Hiranmoy Bhaduri v. Probal Kumar Pramanik 205 I C 138 and Mst. Mitna v. Syud Fuzl Rub 13 M I A 573 ref.

A. R. Sheikh for Appellants.

M. A. Rahman for Respondent.

Dates of hearing: 7th and 15th November 1960.

This judgment will dispose of Regular Second Appeals Nos. 245 and 246 of 1960.

2. The relevant facts giving rise to these appeals are as follows. The Municipal Committee, Lyallpur, by its resolution No. 37/A dated the 30th of July 1956 prohibited the keeping of a brothel and the residence of any person who practises prostitution to certain specified parts of the Municipality of Lyallpur. The resolution was adopted under section 1.52 of the Punjab Municipal Act. A copy of the resolution is Exh. P. 1. Ma. Sardaran and seventy‑‑five other

prostitutes of Lyallpur instituted Civil Suit No. 447 of 1956 for a declaration to the effect that the resolution in question was illegal, ultra vires and void on the ground that the Municipal Committee, Lyallpur, had infringed the provisions of section 152 of the Punjab Municipal Act inasmuch as the prohibition had been extended virtually to the entire area within the Municipal limits of Lyallpur. Mst. Majidan and thirty‑five others filed Civil Suit No. 446, of 1956, in which they also challenged the validity of this resolution on the ground stated above. They further alleged that the resolution in question did not apply to them as they were only singing and dancing girls and were not practising prostitution. The Municipal Committee, Lyallpur, resisted the above suits on various grounds and on the pleadings of the parties the following issues were framed:‑

(i) Whether all the plaintiffs cannot join in one suit (O. P. D.)

(ii) Whether the plaintiffs instituted a similar suit in 1949, and what is its effect (O. P. D.)

(iii) Whether the resolution No. 37/A dated 30‑7‑56 passed by the defendant committee is illegal, ultra vires and null and void on the grounds mentioned in the plaint (O. P. P,)

(iv) Relief.

After framing the issues in both the suits, the proceedings were consolidated and the evidence was recorded only in Civil Suit No. 447 of 1956 (Mss. Sardaran etc. v. The Municipal Committee, Lyallpur). The trial Judge found issues Nos. 1 and 2 in favour of the plaintiffs, but decided issue No. 3 against them. He also held that Mst. Majidan and others were not only singing and dancing girls but were also practising prostitution. He accordingly dismissed both the suits. The plaintiffs in both the suits being dissatisfied by the judgment and decree of the trial Judge went up in appeal before the District Judge. Their appeals were dismissed by the Additional District Judge, Lyallpur, on the 4th of March 1960. He affirmed the findings of the trial Judge on both the points. The plaintiffs have now come up in appeal before this Court.

3. Mr. A. R. Sheikh, learned counsel for the appellants, invited my attention to the statement of Chaudhri Manzur Ahmad, Secretary of the Municipal Committee, who was produced by the plaintiffs themselves as P. W. 1. The Secretary has stated that the resolution in question does not extend to the entire area of the Municipal Committee and there are various abadis which have been excluded from the operation of this resolution. He has further stated that the parts of the Municipality which have been excluded from the operation of the resolution are mostly un-built areas and most of such areas either belong to the evacuees or to the Government. Learned counsel for the appellants, therefore, argued that the entire built area within the Municipality have been included in the resolution. He maintained that under section 152 of the Punjab Municipal Act the Committee could not have passed such a resolution. . Section 152 of the said Act, so for as it is relevant for the purposes of these appeals, is as follows:‑

"(1) The Committee may, by public notice prohibit in any specified part of the Municipality:‑

(a) the keeping of a brothel;

(6) the residence of any person who practises prostitution.

(2) Whoever after the date specified in the public notice issued under subsection (1)

(a)

(b)

(c)

(d) being a practising prostitute resides within the prohibited area, shall be punishable with imprisonment ****

It will thus be seen that section 152 empowers the Committee to prohibit the keeping of a brothel etc. in any specified part of the Municipality, Section 3 (9) defines "municipality". It reads as follows:‑

" Municipality' means any local area declared by or under this Act to be a municipality".

The Secretary of the Municipal Committee has proved the plan Exh. P. 2 showing the limits of the Municipality of Lyallpur.

4. In support of his above‑mentioned contention the learned counsel for the appellants relied on Mst. Muhammadi v. Emperor (A I R 1932 All. 110), where the corresponding provision, section 298‑H (e) of the U. P. Municipalities Act, was considered. Under that section the Municipal Board is empowered to make bye‑laws prohibiting in any specified street or area the residing of public prostitutes and the keeping of a brothel. In 1917 the Municipal Board of Agra passed a bye‑law under that section to the following effect:‑

"No public prostitute shall reside in any house or building or ply her trade with, the municipal limits excepting on both sides of the street (specified therein)."

The contention was raised on behalf of Mst. Muhammadi that only a small area had been specified for the residence of the prostitutes and that they were prohibited from residing within the rest of the Municipal area which was inconsistent with clause (e) of the section. Kendall, J. while dealing with this question agreed with this contention and observed that the section did not authorise the making of the bye‑laws prescribing distinct areas within which prostitutes must reside. It must be said to the credit of the learned counsel for the appellants, that he himself brought it to my notice that this interpretation put by Kendall, J. in respect of this provision of law was dissented from by a Division Bench of the same Court in Mst. Naziran v. Emperor (A I R 1932 All. 537). In this case Bennet, J. had differed from the views expressed by Kendall, J. and, the case was then referred to the Division Bench comprising Sulaiman and Young, JJ. The learned Judge expressed the view that they could see no force in the contention that the area in which residence could be prohibited must be a smaller area and not a larger area of the town. They, however, refrained from giving a decision on the point whether such area could include the entire area within the Municipal limits. In view of the Division Bench ruling the interpretation placed by Kendall, J. has lost its force. In any case, I think that these rulings do not afford any guidance in the solution of the question which has been raised before me. Both the above cases turned on the interpretation of section 298‑H (e) of the U. P. Municipalities Act, the language of which is different from the language used in section 152 of the Punjab Municipal Act. Under the provisions of the U. P. Municipalities Act the Committee is empowered to prohibit in any specified street or area the residence of a public prostitute, whereas the Punjab Municipal Act empowers such prohibition in any specified part of the Municipality.

5. There does not appear to be any reported case directly bearing on the point which has arisen. It is therefore necessary to interpret the words "in any specified part of the Municipality" in accordance with the well recognised rules of interpretation. One such rule is that the words of a statute must prima facie be given their ordinary meaning. Another rule is that when a statute encroaches on the rights of the subjects, whether as regards person or property, it requires to be construed strictly. It would be noticed from the language used in the section, that the Legislature did not intend to empower the Committee to prohibit the residence of the prostitutes within the entire area of the Municipality. If this would have been the intention, it could have manifested its intention in clear and unambiguous terms. The words "in any specified part of the Municipality" therefore cannot be interpreted to include the whole area. I am therefore of the opinion that section 152 does not empower the Committee to prohibit altogether the residence of the prostitutes within the Municipality. In this connection I would like to quote with advantage the observations of the learned Chief Justice of this Court in Mehtab Jan v. Municipal Committee Rawalpindi (P L D 1958 Lah. 929), where he observed as follows:

"It should be stated at the outset that section 152 of the Punjab Municipal Act does not forbid prostitution; it gives the power of prohibition in respect of a specified part of the town. This is in recognition of its injurious effect on morals. A certain locality may be particularly susceptible to injury, where for instance there is a school or college, and there can be no doubt that on general grounds, so long as prostitution is not totally prohibited it should be confined to an out of the way locality. Section 152 does not forbid its being so confined; it seems to be paving the way to such confinement."

6. It now remains to be considered whether the words "in any specified part" mean only a street, Mohalla or any other small area of the Municipality. To accede to such a construction would be to read into these words limitations which are not to be found there. In my opinion they are not susceptible of such an ,q interpretation. The intention of the legislature appears to be that whereas the Committee is not empowered to include the entire area for prohibition, it can certainly specify any part of the Municipality for such purpose. And this does not mean that only one street or one Mohalla can be specified. Having regard to the needs and requirements, the Committee can demarcate the part of the Municipality, which it wants to save from the pernicious influence of the prostitutes. Whethar it involves one street, one Mohalla, or several streets and several Mohallas, it will still remain a specified part of the Municipality. The only restriction which appears to be placed on the Committee is that some portion B of the Municipal area should remain excluded from the prohibition. There is no doubt that the‑ power vested in the Committee is a continuing one, and can be exercised repeatedly, and by this process the Committee can prohibit the residence of the prostitutes in the various parts of the Municipality. I see no. logic in the argument that although such a course is available to the Committee, it cannot by one resolution include several Mohallas and streets within the scope of the words "any specified part of the Municipality."

7. In the light of what has been stated above, I now proceed to examine the resolution Exh. P. 1. By this resolution the Committee prohibited the residence of prostitutes etc., in twenty Mohallas and Streets situated within the Municipality. From the statement of the Secretary of the Committee, it is quite clear that about half the area of the Municipality has been prohibited for this purpose. This is also clear from the plan Exh. P. 2. The learned counsel for the appellants contended that the areas which have been exempted from the operation of this resolution, being mostly unbuilt areas and belonging either to the evacuees or to the Government are not likely to be available to the plaintiffs. But this consideration has no bearing on the interpretation of section 152. There is no provision of law in the Punjab Muni cipal Act which requires, the Committee to provide alternative accommodation to the prostitutes. What is required of the Committee is that the entire area of the Municipality is not included for prohibiting the residence of the prostitutes etc. It only means that the Municipal Committee has to exempt certain parts from the operation of the resolution. The Municipal Committee is not the owner of the entire area within the Municipality, and as such it is not expected that it should provide alternative accommodation to the prostitutes.

8. After a careful consideration of the point involved, I am of the opinion that the Committee had the power to pass the resolution in question under section 152 of the Punjab Municipal Act and that the resolution is strictly in conformity with the letter and spirit of section 152 of the Municipal Act.

9. In the appeal of Mst. Majidan and others, the learned counsel for the appellants strenuously urged that no issue had been framed by the trial Judge on the question that the plaintiffs in that case were only singing and dancing girls and were not practising prostitution. It is true that no such issue had been framed by the trial Judge in this suit, but it appears from the record that after the evidence had been closed on behalf of the plaintiffs in both the suits on issue No. 3, the learned counsel for the plaintiffs Mst. Majidan and others made a statement on 8th September 1958 that he wished to produce two witnesses in the suit of Mst. Majidan and others and he thereafter produced Mst. Walayat Begum (P. W. 8) and Rashida Begum (P. W. 9) on the same day. They were two of the plaintiffs in the suit of Mst. Majidan and others. They stated that the plaintiffs in that suit were only singing and dancing girls and were not carrying on prostitution. It is therefore, clear that the plaintiffs did adduce evidence on this part of the case and the same was duly discussed before the trial Judge as well as before the additional District Judge who gave their decision on it. It is no doubt the duty of the Court to frame proper issues under Order XIV, rule 1 of the Code of Civil Procedure, but all the same, I am of the view that it is also the duty of the counsel for the parties to get the proper issues framed. It was so held in Badrul Islam Ali Khan v. Mst. Ali Begum (I L R 16 Lah. 782 at p. 802) and in Mehr Bakhsh v. Maula Dad (P L D 1951 Lah. 113). It is clear from the record no specific issue had been claimed by the plaintiffs on this part of the case. It also appears from the judgment of the Additional District Judge that even in the grounds of appeal submitted before that Court it had not been urged that there ought to have been a specific issue on this point. The question arises whether an omission to frame an issue of fact, in the circumstances narrated above, vitiates the findings of the Courts below. In my opinion the answer must be in the negative. Firstly because I think the plaintiffs were satisfied that issue No. 3 as framed covered the point. It says whether the resolution was illegal, ultra vires and null and void on the grounds mentioned in o the plaint'. And surely this is one of the grounds mentioned in the plaint, that the resolution did not apply to the plaintiffs as they were not practising prostitution. Secondly the plaintiffs did adduce evidence on this aspect of the matter. Thirdly they did not claim at the trial that a separate issue should be framed on this point. Fourthly the matter was argued before the Courts below and the Courts gave their decision on the point. It is now too late to say that on account of an omission to frame a specific issue on the point, the plaintiffs were misled or prejudiced, and could not adduce all the necessary evidence. It was held in Dulhin Rajkishore Kuer v. Sheikh Muhammad Qayum (198 I C 890), by a Division Bench of the Patna High Court that "when evidence was given and the question was raised in both the Courts below the decision cannot be assailed because there was an omission to frame a specific issue on the point." Likewise in Hiranmoy Bhaduri v. Probal Kumar Pramani (205 I C 138), a Division Bench of the Calcutta High Court observed as follows :‑

"In spite of the defect in the frame of the issue, however, the parties in the present case seem to have gone to trial, knowing full well what the question for decision was. At least the plaintiff was given an opportunity of meeting the point raised at the trial though not covered by the issue, and he cannot be heard to say that the defect in the frame of the issue prejudiced him when he did not avail himself of that opportunity."

A similar point had arisen as long ago as 1870 before their Lordships of the Privy Council in Mst. Mitna v. Syud Fuzl Rub (13 M I A 573)

Mst. Mitna had filed a suit to recover the money mentioned in the Bond. The defendants had pleaded that the Bond was without consideration and had been cancelled. Without framing issues of law or fact, the Sudder Amin after recording the evidence of the parties had dismissed the suit. On appeal the High Court of Judi cature, North Western Provinces Agra, had regretted the omission to frame the issues, but had dismissed the appeal on the ground that the parties had perfectly understood the issues which had to be determined. Their Lordships of the Privy Council also dismissed the appeal on the ground that substantial justice had been done and that there had not been that fatal mis‑trial of the cause, which vitiated all the proceedings and rendered a new trial necessary.

10. As against these authorities, the learned counsel for the appellants could not cite a single authority holding a contrary view. 1 accordingly hold that the omission to frame a specific issue on the point did not in the circumstances of the present case vitiate the findings of the Courts below that the plaintiffs Mst. Majidan and others were practising prostitution. This being a finding of fact could not be challenged in second appeal, and in fact the learned counsel for the appellants did not challenge it before me.

11. For the reasons given above, I see no merit in both the appeals, which are hereby dismissed with costs.

A. H.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.