' The petitioner is running a coach service in the name and style of Askari Coach Service from Malir Cantt. To Karachi Cantt. Railway Station under the route permit issued by the respondent No,4. By letter, dated 21-8-1997 issued by the office of the respondent No,2 he was given a "permit" to run the service from the area of Malir Cantt. Upon certain conditions including payment of permit fee payable to the Station Headquarters. This "permit" however, appears to have been cancelled by a subsequent letter, dated 12-3-1998 addressed to the respondent. Moreover through a public notice appearing in the press on 21-12-1997 the respondent No,1 "Cantonment Executive Officer, Malir Cantt." invited applications from interested transporters, possessing valid route permit issued by the respondent No,4 (Road Transport Authority) to apply for grant of permit for running Buses and Coaches on the designated route upon deposit of Rs,2,00,000 as security deposit. The petitioner protested against inviting such bids for the purpose of allowing transporters to operate their vehicles. Thereafter by a letter, dated 18-2-1998 the petitioner was informed by the office of the respondent No,2 (Station Headquarters), Malir Cantt. That it had been decided to award the contract for running transport vehicles on the prescribed route, through competitive bids and the offer submitted by the respondent No,7 being lowest was approved by the Garrison Commander.
Therefore, the permission granted to him earlier stood withdrawn. Simultaneous directions were also issued to the Military Police Unit, Malir Cantt. To stop the vehicles owned by the petitioner.
2. The petitioner has called in question the action of respondents Nos.1, 2 and 3 and has mainly contended that once he has been granted a route permit to ply Coach service by the respondent No,4, the aforesaid respondents had no jurisdiction to impose further conditions and restrain the entry of such vehicles in the Cantonment area. Notices were issued to the respondents and their comments were invited but only respondent No,1 Cantonment Board and respondent No,4, Provincial Transport Authority, have filed such comments.
3. On 7-3-2002 when all the respondents were duly represented we felt that since short questions were involved, the entire petition would be disposed of. At the outset we requested Mr. Amir Hani Muslim, D.A.-G. And Mr. Khalid Daudpota, learned counsel for respondent No,1 to satisfy us under what authority of law a permit in addition to one granted by the Provincial Transport Authority was required for plying a transport vehicle in a Cantonment area. Both learned counsel requested for time to prepare themselves and the hearing was adjourned to 12-32002. On that date Syed Tariq Ali, learned Federal Counsel appeared for the respondents Nos.2 and 3 and stated that he needed more time to obtain appropriate instructions. We, therefore, adjourned the matter to 20-3-2002.
Syed Tariq Ali did not appear on that date and Mr.Daudpota required further time to study the matter and the case was adjourned to today. We have not had the benefit of the assistance of the learned Federal counsel, who was not even available today, but have heard Mr. Faisal Khalid appearing on behalf of respondent No,l.
4. In the first instance it may be pertinent to mention that on the last date of hearing Mr. Khalid Daudpota had relied upon section 282(4) of the Cantonment Act, 1924, which enables Cantonment Board to make bye-laws in respect of several matters, including Regulations or Prohibition of any discrepancies of Traffic in the streets. We had nevertheless requested learned counsel to show whether any particular bye-laws had been validly made by the respondent No,1 enabling imposition of the description in question. Mr. Faisal Khalid candidly . Stated that no such bye-laws have been framed. Nevertheless he referred to section 117 of the Act which describes the discretionary functions of the Board and clause (J) thereof reads as under:-- "Constructing subsidizing or guaranteeing a Tramways or other means of locomotion, and electric lightening or electric powers bulbs."
5. Learned counsel contended that discretionary functions as distinguished from duties spelt out in section 117 indicated that it was optional for the Board 'to undertake or not to undertake any measure in the performance of this function and failure to allow the petitioner's vehicles to enter, into the Board limits ought to be treated as exercise of a valid option. We regret we find this contention to be patently untenable. In the first place the relevant statutory provisions A indicate that the Board may in its discretion choose to construct a Tramway or facilities or other means of locomotion such as roads etc. But the power to restrict the entry of person or vehicles is altogether different and must be clearly spelt out from statute. Secondly the Board may have discretion not to perform a particular function, but for restricting the movement of persons or vehicles a conscious decision has to be taken, which must conform to the law and the rights guaranteed by the Constitution.
6. We have also examined section 210 of the Act which requires that large number of occupations cannot be carried out in a Cantonment area without obtaining a licence from the Board and the B Board may levy licence fee with the previous sanction of the Government, but this section does not speak of the vocation of transportation of commercial vehicles.
7. Learned A.A.-G. On the other hand, supported the case of the petitioner by contending that the power to grant a route permit only vested in the respondent No,4 under the Motor Vehicle Ordinance and any restriction imposed by the respondent No,1 would amount to an invasion over authority of the respondent No,4.
8. Mr. Faisal Khalid attempted to meet this argument by contending that a permit granted by the respondent No,3 was applicable only within the area of Province and Cantonments did not fall within such areas. We are afraid there is no force in this contention either inasmuch as it has been clearly laid down by the Honourable Supreme Court in Pakistan v. Province of Sindh. PLD 1975 SC 37 "that there is nothing in any Constitution or any law to show that a Cantonment area is not to be included within the territorial limits of a Province in which it is situate".
9. For the foregoing reasons we are constrained to allow this petition, holding that as long as the petitioner possesses valid route permit granted by the respondent No,4, the respondents Nos.1 and 2 cannot require him to obtain a separate licence for allowing entry of his vehicles in the Cantonment area.