Mian Sohrab Gul Vs Muneer & others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

C.R No. 1238-P of 2025 & COC No. 351-P of 2025.

Mian Sohrab Gul Vs Muneer & others

Mr. Gul Sadbar, Advocate, for petitioner.

Mr. Muhammad Zeb Khan, Advocate, for respondents No.1 to 8.

Present:

Mr. Muhammad Hayat Khan, Advocate, for respondents No.10 and 11.

Mr. Yasir Khalid, AAG, for Provincial Government.

Date of hearing: 03.07.2026.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J.- The petitioner/plaintiff instituted a suit for declaration and perpetual injunction, asserting that by virtue of a No Objection Certificate (NOC) issued by defendants No. 1 to 3, namely the concerned municipal authorities, for the year 2024-2025, he had acquired an exclusive right to establish, manage and operate a fruit and vegetable market at Tangi Morh, Tehsil Tangi, District Charsadda. On the strength of the said NOC, the petitioner sought a declaration that defendants No. 1 to 3 were not competent to issue any similar NOC in favour of defendants No. 4 to 11 or any other person for establishment of another fruit and vegetable market within the area. Consequential relief of perpetual injunction was also claimed, seeking restraint against defendants No. 1 to 3 from issuing any NOC to defendants No. 4 to 11.

2.The foundation of the suit was that the petitioner had obtained an NOC from the municipal authorities after payment of the prescribed fee of Rs.20,000/-, and that issuance of such NOC conferred upon him an exclusive right to carry on the business of a fruit and vegetable market within the territorial limits of Tehsil Tangi. According to him, once such permission had been granted, no competing market could lawfully be established by any other person.

The suit was contested by the defendants. Defendants No. 2 and 3, while acknowledging that the petitioner was operating an existing fruit and vegetable market, categorically denied that the issuance of an NOC conferred any monopoly or exclusive privilege upon him. Their stance was that the municipal authorities were legally competent to grant NOCs to other eligible persons in accordance with the applicable laws, rules and by-laws. Defendant No. 1 filed a separate written statement asserting that the petitioner's market was situated within a congested and densely populated area of the city, causing traffic bottlenecks, encroachments and civic inconvenience. It was further pleaded that there existed no legal prohibition against establishment of another fruit and vegetable market at a suitable location outside the congested urban area in order to facilitate trade, improve traffic management and serve the larger public interest. Defendants No. 4 to 11 also resisted the suit by maintaining that they were merely working as Arhtis (commission agents/brokers) in a fruit and vegetable market established outside the city limits at a distance of approximately two and a half kilometers from the existing market. All defendants sought dismissal of the suit. The learned Trial Court, after receipt of the written statements, proceeded to decide the matter summarily and, while issuing certain directions to defendants No. 1 to 3 to act in accordance with the relevant by-laws, restrained defendants No. 4 to 11 from operating fruit and vegetable markets both within and outside the city. Feeling aggrieved, the private respondents preferred an appeal which was accepted through the impugned judgment. Consequently, the judgment and decree of the learned Trial Court were set aside and the suit of the petitioner was dismissed, giving rise to the instant petition. Contempt of Court Case No. 48/1 of 2025 has also been instituted by the petitioner seeking initiation of contempt proceedings against the respondents for the alleged violation of the order passed by the learned trial Court. Since the said contempt petition emanates from the same civil suit which was decreed in favour of the petitioner by the learned trial Court, but the said judgment and decree have subsequently been set aside by the learned appellate Court through the impugned judgment, both

matters are inextricably interconnected and arise out of the same set of facts and legal controversy. In order to avoid conflicting findings, ensure consistency in judicial determination, and secure coherence, rationality and judicial economy, I deem it appropriate to decide the Contempt of Court Case alongside the instant petition through this common and consolidated judgment.

3.Arguments heard; Record perused.

4.The record reveals that an NOC for establishment and operation of a fruit and vegetable market at Tangi Morh was issued in favour of the petitioner on 12.02.2025. A plain reading of the conditions attached thereto demonstrates that the permission was regulatory in nature and subject to municipal supervision and control. The NOC neither granted any proprietary interest nor conferred any exclusive or monopolistic right upon the petitioner. Rather, it merely authorized operation of the market subject to compliance with municipal regulations, payment of dues, observance of approved price lists, prevention of encroachments and renewal upon expiry of the prescribed period. Similarly, the record reflects that another NOC was issued by the Tehsil Municipal Administration, Tangi, in favour of Natasha Yasir for establishment of a private fruit and vegetable market at Chawatra Pull near Rahat Siyal House, Tangi. The conditions incorporated therein expressly required compliance with the Model By-Laws, 2021, registration of commission agents, maintenance of hygiene, provision of civic amenities, establishment of complaint redressal mechanisms, cooperation with regulatory authorities and observance of other municipal requirements. The permission was also limited in duration and revocable upon violation of the prescribed conditions. A comparative reading of both NOCs leaves no room for doubt that they are regulatory permissions intended to facilitate lawful commercial activity while ensuring compliance with municipal laws. Neither document contains any clause granting exclusivity or creating a monopoly in favour of its holder. Nor has any statutory provision, rule, regulation or by-law been brought to the notice of this Court which prohibits the

municipal authorities from issuing more than one NOC for operation of fruit and vegetable markets within their territorial jurisdiction.

5.Another significant aspect of the case is that the suit itself discloses no interim injunctive order operating against the municipal authorities at the time when the NOC was issued in favour of Natasha Yasir. The suit was instituted on 28.03.2025, yet the petitioner has failed to demonstrate that any ad-interim injunction had been granted restraining the authorities from processing or issuing permissions to other applicants. More importantly, Natasha Yasir, in whose favour the impugned NOC had been issued and whose rights stood directly affected by the relief claimed in the suit, was never impleaded as a party. Admittedly, defendants No. 4 to 11 are merely Arhtis (commission agents/brokers) working in the market established by Natasha Yasir. This position further stands corroborated by the certificate issued by the Tehsil Municipal Administration, Tangi, dated 17.07.2025, produced during the course of arguments. In the absence of the principal beneficiary of the NOC, no effective or enforceable declaration could lawfully be granted.

6.The entire claim of the petitioner is founded upon the assumption that issuance of an NOC in his favour vested him with an exclusive right to carry on the business of a fruit and vegetable market and simultaneously disabled the municipal authorities from granting similar permissions to others. Such contention is legally untenable. The right to engage in lawful trade, profession, occupation or business is a constitutionally protected right. The freedom to carry on trade and business cannot be curtailed except in accordance with law and for reasons sanctioned by the Constitution. Regulatory authorities may impose reasonable conditions in the public interest concerning licensing, hygiene, traffic management, environmental concerns, municipal planning and public safety; however, such regulation cannot ordinarily be transformed into a mechanism for creating monopolies in favour of private individuals unless expressly

authorized by law. The powers vested in Tehsil Municipal Administrations are regulatory and supervisory in character. Their function is to regulate municipal affairs, maintain public order, ensure civic convenience, manage traffic concerns, enforce by-laws and facilitate lawful commercial activities within their jurisdiction. These powers cannot be construed as enabling the conferment of exclusive commercial privileges upon one trader to the exclusion of all others unless such exclusivity is specifically sanctioned by statute. No such statutory foundation has been pointed out in the present case.

7.Equally untenable is the claim for declaration under Section 42 of the Specific Relief Act, 1877. A declaration can only be granted where the plaintiff establishes the existence of a legal character or a right to property recognized by law and demonstrates an actual or threatened denial thereof by the defendant. The jurisdiction under Section 42 is not intended to protect commercial monopolies unsupported by law, nor can it be invoked to restrain lawful competition. The petitioner has failed to identify any legal right, statutory privilege or exclusive entitlement entitling him to be the sole operator of fruit and vegetable markets within the territorial limits of Tehsil Tangi. Mere issuance of an NOC does not create such a right. Consequently, the essential ingredients for grant of declaratory relief are conspicuously absent. The claim, in substance, seeks to prevent the municipal authorities from permitting other citizens to engage in a lawful business activity. Such a proposition is not only unsupported by law but is fundamentally inconsistent with the principles governing free trade and lawful competition. Healthy competition among traders generally promotes efficiency, availability of goods, competitive pricing and improved services for consumers. Courts cannot ordinarily grant relief that has the effect of creating a private monopoly at the expense of other citizens' lawful right to conduct business.

8.The record further demonstrates that the petitioner's market is situated within a congested urban locality, whereas the market

established by Natasha Yasir is located approximately two and a half kilometers away from the city. It is a matter of common experience that traditional fruit and vegetable markets, livestock markets, slaughterhouses, transport terminals and similar commercial establishments situated within densely populated urban centers frequently generate traffic congestion, sanitation issues and civic inconvenience. Consequently, municipal and local governments across the province have, over time, adopted policies aimed at relocating such facilities to more suitable locations outside congested city centers in order to ensure smooth traffic flow, better urban management, improved sanitation and enhanced public convenience. Such measures are rooted in public interest and fall squarely within the administrative and regulatory domain of local governments. Therefore, the decision of the municipal authorities to permit establishment of another market at a location outside the congested city area cannot, by any stretch of imagination, be termed arbitrary, unlawful or violative of any right of the petitioner.

9.It is further noteworthy that the NOC in favour of Natasha Yasir had already been issued and acted upon before any effective restraint order was obtained by the petitioner. The law is well settled that injunction is essentially a preventive remedy and not one intended to undo acts already completed. In this regard, reference may be made to “Salahuddin Khan and 3 others v. Sultan-e-Rom and 10 others” (PLD 1973 Peshawar 95) wherein it was held that where the act complained of has already been completed, the grant of injunction becomes inappropriate. The learned appellate Court has correctly applied this principle while evaluating the controversy.

10.The grant of NOC in favour of Natasha Yasir has not been shown to be contrary to any statutory provision, rule, by-law or regulation. Nor has any illegality, procedural irregularity or jurisdictional defect been pointed out in the impugned judgment. The findings recorded by the learned appellate Court are firmly grounded in the record, consistent with the governing legal principles and call for no interference in revisional jurisdiction.

11.Adverting to Contempt of Court Case (COC) No. 351- P/2025, it is pertinent to observe that the learned trial Court decreed the suit in favour of the petitioner on 07.05.2025. The said judgment and decree, however, were subsequently reversed by the learned appellate Court through judgment and decree dated 19.06.2025. The present COC was instituted on 18.06.2025, i.e., one day prior to the reversal of the decree by the appellate Court. The filing of the contempt petition was misconceived from its very inception. So long as the decree of the learned trial Court remained operative, the petitioner had an efficacious and adequate statutory remedy under the Code of Civil Procedure to seek its enforcement by initiating execution proceedings before the competent executing Court. Instead of availing the legally prescribed remedy, the petitioner sought, through the present contempt petition, to secure execution of the decree indirectly under the guise of contempt proceedings, which is impermissible in law. Contempt jurisdiction is not intended to serve as a substitute for execution proceedings, nor can it be invoked to enforce a decree where the statute provides a complete and efficacious mechanism for its execution.

12.Furthermore, even assuming that the petitioner alleged deliberate disobedience of an order passed by the learned trial Court, such allegation did not furnish a valid foundation for invoking the contempt jurisdiction of this Court. The jurisdiction to punish for contempt cannot be invoked merely to enforce or execute a decree of a subordinate Court. The proper course available to the petitioner was either to pursue execution in accordance with law or to seek such remedy as may be permissible before the Court whose order was allegedly violated. Consequently, the present contempt petition was not maintainable before this Court from its very inception. Apart from the above legal impediments, the very foundation of the contempt petition has ceased to exist. The judgment and decree of the learned trial Court, upon which the entire edifice of the COC rested, have been set aside by the learned appellate Court. Once the underlying decree has been reversed, no enforceable right survives

thereunder, and the contempt petition, even otherwise, has become infructuous.

13.For the reasons recorded above, the petitioner has failed to establish any legal or vested right warranting protection through the grant of declaratory or injunctive relief. The impugned judgment and decree passed by the learned appellate Court are free from any illegality, material irregularity, misreading or non-reading of evidence, or jurisdictional infirmity warranting interference by this Court. Consequently, the instant petition, being devoid of merit, is dismissed. Contempt of Court Case No. 351-P/2025 is also dismissed, being not maintainable from its inception and, in any event, having become infructuous upon reversal of the decree forming its basis. No order as to costs.

Announced.

JUDGE

(SB)Hon’ble Mr. Justice Muhammad Naeem Anwar.

Asif Jan Sr.S.S.