ORDER intend to decide the following writ petitions by one consolidated order having similar facts and law depending upon each other:- W.P. No. 11961/2005
2. W.P. No. 11962/2005
3. W.P. No. 11963/2005
2. The brief facts out of which the aforesaid Constitutional Petition No. 11961/2005 arises are that the competent authority inserted Section 69-A by Punjab Motor Vehicles (Amendment) Ordinance, (XLVI of 1999) in West Pakistan Motor Vehicles Ordinance, 1965. The petitioner company approached respondents No. 2 and 3 for issuance of route permits under the franchise based urban transport system in terms of aforesaid provision of law and finally after correspondence between the petitioner company and the respondents franchise agreement was executed between the petitioner company and the respondents on 26.5.2004. The petitioner company was granted the franchise for exclusive operation of a bus service in Lahore city on routes No. 61 which was operated from Railway Station to Liqatabad.
According to the terms of the franchise agreement the petitioner had to induct 40 brand new Hino Pak vehicles. For the said purpose the petitioner company has also executed lease finance agreement with Al-Falah Bank on 29.10.2004. The vires of aforesaid provision of law was challenged by the aggrieved persons through various constitutional petitions before this Court and a Full Bench of this Court dismissed the constitutional petitions. The aggrieved persons preferred petitions against the judgment of this Court before the Apex Court which Was accepted and reported as Arhsad Mehmood and others Vs. Government of Punjab (PLD 2005 SC 193). The relevant observation is as follows:--- "Thus for the foregoing reasons, the appeals/petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan are accepted. Section 69-A of the Motor Vehicles Ordinance, 1965 (as amended) is hereby declared ultra vires of the Constitution of Islamic Republic of Pakistan, as a consequence whereof the impugned judgments are set aside. However, existing arrangements may continue for a period of four months enabling the Provincial Government to take appropriate legislative/administrative measures in accordance with Constitution and law."
The petitioner approached the respondents in view of the judgment of the Hon'ble Supreme Court.
Secretary District Regional Transport Authority respondent No. 4 accepted the application of the petitioner for operation of its buses on existing route No. 5 with the alignment from general bus stand to Kahana Nau through the specified route mentioned in the contents of letter dated 18.2.2005. The petitioner company was allowed by 'le respondents to operate its buses on the said route smoothly. Subsequently, respondents without any lawful authority did not allow the petitioner's buses to operate over the said route and consequently the buses belonging to the petitioner company were detained. The petitioner company submitted various applications before the respondents under Rule 64(1) of West Pakistan Motor Vehicles Rules, 1956, which are at pages 86 to 97 in W.P. No. 11961/2005. The petitioner has also filed applications to Secretary District R.T.A.
Under the heading 'issuance of route permits' on 17.1.2005. The petitioner also submitted application for route permit to the respondents on 15.1.2005, which are at pages 115 to 139 in W.P. 11961/2005. The petitioner also submitted another application to the Secretary Government of the Punjab/Transport Authority with the prayer of issuance of route permits on route No. 5, which is at page 140. The petitioner being aggrieved filed W.P. No. 11961/2005.
3. The facts of W.P. No. 11962/2005 are exactly Similar except that the petitioner has submitted application before the respondents for issuance of permits on 15.1.2005. Copy of the same is attached at pages 86 to 89 of W.P. No. 11962/2005.
4. The facts of W.P. No. 11963/2005 are that the petitioner submitted an application for approval of clause D bus stand through an application to the respondents on 2.10.2000, which was allowed. Thereafter the petitioner submitted an application for renewal of the licence, which was renewed up to 23.5.2003 as is evident from Annexure B attached with the constitutional petition. Thereafter the petitioner submitted an application for renewal of D clause licence dated 26.6.2001 to the Director General Administration, Lahore RTA who did not decide the same and issued show cause notice to the petitioner on 23.5.2005. The petitioner has submitted reply of the same but the respondents illegally did not allow the petitioner to enter in the D clause stand and police has been posted around the stand of the petitioner. The petitioner being aggrieved filed W.P. No. 11963/2005.
5. Learned counsel of the petitioner submits that action of the respondents is not in consonance with the mandatory provisions of West Pakistan Motor Vehicles Ordinance, 1965 and rules framed thereunder. He further submits that manner of exercising power by the respondents is also termed as mala fide. He further submits that petitioner company submitted various applications before .
The respondents for grant/issuance of route permit to the petitioner which have not been decided by the respondents till date. This fact alone is sufficient that the action of the respondents is without lawful authority. He further submits that respondents have executed franchise agreement with the petitioner qua route No. 61 wherein the restraining order by the Civil Court has already been passed in a civil suit filed by Chaudhry Brotheran Transporters Vs The Province of Punjab wherein the respondents are restrained by the Civil Judge Est Class. Lahore from issuing any new permit in violation of relevant provisions of law contained in Motor Vehicles Ordinance, 1965 with regard to route No. 61. Therefore, the petitioner is penalized by the inaction of the respondents. The petitioner came to know about the restraining order and submitted an application before the Civil Court under Order 1. Rule 10, CPC, for impleading the petitioner as respondent in the said suit. The petitioner also submitted an application before respondent No. 4 to allow the petitioner to operate its buses on other routes. Respondent No. 4 allowed the petitioner to operate its buses on route No. 5 on 18.2.2005. He further urges that the petitioner has invested huge amount by purchasing new buses on the incentive scheme issued by the respondents under the provisions of Section 69-A inserted at that time. He summed up his arguments that act of the respondents is without lawful authority and is not sustainable in the eyes of law.
6. Mr. M. Hanif Khattana, Addl.A.G. Submits that the petitioner was allowed to ply its buses at route No., 5 under the Rules. The respondents have initiated action against the petitioner under Section 44 read with Section 115 of Motor Vehicles Ordinance, 1965 and rules framed thereunder. He further submits that traffic checking staff of Punjab Provincial Transport Authority has taken action against the public service vehicles operating without necessary documents i.e., registration book, valid fitness certificate, valid route permit etc. The action was taken by the respondents in accordance with law as the petitioner has no valid permit as well as no registration book and the drivers who were plying the buses of the petitioner's company did not possess driving licence at the relevant time. He further submits that matter was also discussed in the meeting of District R.T.A. And did not approve order of respondent No. 4, dated 18.2.2005. He further submits that competent authority has decided to issue new policy which will be implemented and announced within few days. He further submits that the petitioner wants enforcement of contract through these constitutional petitions, therefore, constitutional petitions are not maintainable. He further submits that the petitioner has alternative remedies before the competent authority under the provisions of Motor Vehicles Ordinance and rules framed thereunder, therefore, constitutional petitions are not maintainable. He further urges C.L. R. that the petitioner company's buses are not only detained but the buses of the other transporters are also impounded and challan has been submitted before the concerned authority list of which is placed on record along with the minutes of meeting of the District R.T.A., dated 7.4.2005.
7. Chaudhry Muhammad Suleman, Addl. A.G. Submits that action of the respondents is in accordance with law and the petitioner has alternative remedy. Therefore, constitutional petitions are not maintainable. He further urges that petitioner's licence qua D-class bus stand was renewed up to 23.5.2003. Therefore, action of the respondents is in accordance with law.
8. Kh. Muhammad Afzal. Legal advisor of City District Government adopted the arguments of learned law officers.
9. Learned counsel of the petitioner in rebuttal submits that list submitted by the learned Addl. A.G.
Relates to truck, pick up, mini bus. This list is sufficient to show that action of the respondents is hit by Article 25 of the Constitution. He further submits that order of respondent No. 4, dated 18.2.2005 was approved by the District R.T.A. Vide its meeting held on 7.4.2005 wherein the petitioner was allowed to operate its buses in the public interest. He further urges that ingredients of Section 44 and 115 of the Ordinance are not attracted in the present case, therefore, action of the respondents is without lawful authority and is bases on mate fide.
10. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
11. It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties:- Section 69-A was inserted in West Pakistan Motor Vehicles Ordinance, 1965 vide amendment Ordinance No. XLVI of .1999. The vires of the same were challenged before this Court and the Full Bench of this Court dismissed the constitutional petitions vide judgment dated 10.12.2002 which was challenged before the Apex Court and the judgment of this Court was set aside in Arshad Mehmood's case (PLD 2005 SC 193) wherein the existing arrangements were ordered to be continued for a period of four months enabling the Provincial Government to take appropriate legislative /administrative measures in accordance with Constitution and law.
(ii) The petitioner executed franchise agreement with the respondents on 26.5.2004 with regard to route No. 61.
(iii) Chaudhry Brothers Transporters secured restraining order from Civil Judge 1st Class, Lahore on 31.5.2000 qua route No. 61 against the respondents.
(iv) The petitioner submitted an application" in the said suit under Order 1, Rule 10, CPC for impleadment as respondent.
(v) The petitioner submitted an application before the Secretary District R.T.A. Lahore who accepted the same to allow the petitioner to operate its buses on existing route No. 5 under the rules vide letter. Dated 18.2.2005
(vi) The petitioner was allowed to operate its buses on route No. 5 for some period.
The respondents have initiated action against the petitioner allegedly on account of violation of mandatory provisions of Section 44 and Section 115 of Motor Vehicles Ordinance, 1965
(viii) The petitioner has also submitted various applications before the respondents for issuance of route permits and renewal of licence of D-class bus stand, which are not decided by the respondents till date.
(ix) One of the application of the petitioner was considered in the meeting of District R.T.A. On 7.4.2005. The following decision vide item No. 7 was taken:--- 7 The matter regarding grant of route permits in favour of buses of M/s Skyways Urban The Authority unanimously decided that in view of promulgation of new Bus Service on route No. 5. Ordinance for regulating stage carriages by the Government of the Punjab, fresh route permits on new routes will not be issued till finalization of Surveys by the Transport Department. The request of the company was therefore, turned down. The Authority however allowed operation of its buses in the public interest.
(x) The challans of buses of petitioners have already been submitted before the competent authority/special Court.
In case the aforesaid facts are put in a juxta position then the petitioner has alternative remedy with regard to the action taken by the respondents against the petitioner qua submitting of challan before Special Court. It is settled principle of law that constitutional petitions are not maintainable in presence of alternative remedy as the law laid down by the Hon'ble Supreme Court in Tariq Transport Company's case (PLD 1958 SC (Pak.) 437). It is pertinent to mention here that any offence committed by any person qua traffic is triable by a Special Court constituted under the provisions of Traffic Offences (Special Courts) Ordinance, 1981. The competent authority has authority to constitute a C.L.R.
Special Court under Section 3 of the said Ordinance. The provisions of Cr.P.C. Are applicable in view of Section 3(4)(5)(6) of the said Ordinance. The jurisdiction of the Special Court is also specified in Section 4 of the said Ordinance. In case the Special Court has passed any order then aggrieved party has a right of appeal in the Court of Sessions in terms of Section 6 of the said Ordinance. In this view of the matter the constitutional petitions are not maintainable to the extent of the challans which have already been submitted before the Special Court and this Court even cannot quash the challan submitted before the competent Court while exercising inherent power under Section 561-A, Cr.P.C. As the law laid down by the superior Courts in the following judgments:--- Kh. Fazal Karim's case (PLD 1976 SC 461) Sher Khan's case (1968 SCMR 62)
Ghulam Muhammad case (PLD 1967 SC 317)
It is admitted fact that the petitioner has more than one alternative remedies against the action with regard to challans submitted by the respondents before the Special Court either to appear before the Special Court by raising all legal and factual objections qua the maintainability of challans and the Special Court has jurisdiction to take the cognizance of such type of arguments in terms of Section 4 of the said Ordinance and thereafter the petitioner has remedy of appeal in the Court of Sessions. In somewhat similar circumstances my learned brother Ihsan-ul-Haq Chaudhry, J (as he then was) considered this proposition of law qua maintainability of constitutional petition in presence of the alternative remedy in W.P. No. 4-174 of 1998 and laid down the following principle:--- "There is recent tendency to file constitutional petitions without exhausting the remedies under the statute. This recent trend is dangerous. Hon'ble Supreme Court clearly held in the cases reported as Pir Sabir Shah Vs. Shad Muhammad Khan, NWFP and another (PLD 1955 SC 66), The Collector Customs, Karachi Vs. M/s New Electronics (Pvt.) Limited and others (PLO 1994 SC 363) and Rifaat Askari Vs. State (PLO 1997 Lahore 285)." i have taken aforesaid view in different constitutional petitions while relying upon the aforesaid principle laid down in the aforesaid judgments. Therefore, I am not in a position to deviate from my own view on the well known principle of consistency as per law laid down in Muhammad Muzaffar Khan's case (PLD 1959 SC 9).
12. It is also settled principle of law that public functionaries are duty bound to act in accordance with law without fear. Favour and nepotism as is envisaged by Article 4 of the Constitution. It is admitted fact that the petitioner has submitted various applications for grant of route permit as well as for renewal of licence of D-clause bus stand which have not been decided by the respondents till date. It is pertinent to mention here that the public functionaries are either not deciding the cases or applications of the citizens or deciding the same without application of mind that is why the competent legislative authority has added Section 24-A in the General Clauses Act, which is procedural in nature, therefore, the same has retrospective effect, as per principle laid down by the Hon'ble Supreme Court in "Zainyar Khan Vs. The Chief Engineer, WAPDA. Etc." (1998 SCMR 2419). It is the duty and obligation of public functionaries to decide the controversy between the parties after application of mind as is envisaged by Article 4 of the Constitution read with Article 5(2) of the Constitution and Section 24-A in the General Clauses Act, as per principle laid down by the Hon'ble Supreme Court in -"M/s Airport Support Service Vs. The Airport Manger.
Karachi" (1 998 SCMR 2268). It is also settled principle of law that no body should be penalized by inaction of public functionaries, as per principle laid down by this Court in "Ahmed Latif Qureshi Vs. Controller of Examination, Board of Intermediate, Lahore" (PLD 1994 Lahore 3). To provide a safeguard against the arbitrary exercise of power by the public functionaries, the condition of recording reasons is imposed on them, after addition of Section 24-A in the General Clauses Act. It is also settled principle of law that State functionaries are expected to act fairly and justly. In a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise as per principle laid down "Shaukat Ali and others Vs. Government of Pakistan and others (PLD 1997 SC 342). It is pertinent to mention here that the aforesaid principle of law is founded on the premises that the public functionaries deriving authority from or under the law, are obligated to act justly, fairly, equitably, reasonably without any element of the discrimination within parameters of law as the law laid down by the Hon'ble Supreme Court in Chairman RTA's case (PLD 1991 SC 14) wherein the Hon'ble Supreme Court has laid down a principle qua exercising discretion by the respondents under the provisions of West Pakistan Motor Vehicles Ordinance, 1965 and Rules framed thereunder. It is also settled principle of law that law is not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the Superior Courts as per law laid down in .Manzoor Ellahi case '(PLD 1975 SC 66). The public functionaries are also duty bound to act in accordance with law in view of Article 4 read with Articles:189, 190 and 201 of the Constitution.
Meaning thereby to act within the framework of law and Constitution as the law laid down by the Hon'ble Supreme Court in Zahid Akhtar's case (PLD 1995 SC 530).
13. As mentioned above the respondents have not decided the applications of the petitioners till date which are pending adjudication before the respondents for a considerable period which is not in consonance with the mandate of the Constitution, as mentioned above, as ordained by Article 4 of the Constitution. The petitioner has spent huge amount on the purchase of vehicles, therefore, the respondents are duty bound to decide the applications of the petitioner with reasons within reasonable time. Merely not deciding the same brings the petitioner in a situation that the petitioner is deprived of his lawful authority to ply its buses on a route allocated in favour of the petitioner. In the interest of justice and fair play keeping in view the peculiar circumstances of this case the petitioner is directed to appear before respondent No. 2 (W.P. No. 11961/2005) Secretary Transport Government of the Punjab who is directed to look into the matter and pass an appropriate order strictly in accordance with law within a week after, providing proper hearing to all the concerned including the petitioner to the extent of applications of the petitioners pending adjudication before the authorities either himself or send the same to the competent authority who is also directed to decide the same strictly in accordance with law preferably within one week. The petitioner is directed to appear before respondent No. 2 on 7.7.2005 at 11 a.m. In his office who is directed to look into the matter and pass an appropriate order strictly in accordance with law preferably within a week after providing proper hearing to all the concerned including the petitioner to the extent of applications of the petitioners pending adjudication before the authorities either himself or send the same to the competent authority who is also directed to decide the same strictly in accordance with law preferably within one week till 14.7.2005. He is further directed to submit report to the Deputy Registrar (Judl.) of this Court within the stipulated period. The petitioner is well within his right to avail alternative remedy qua the challans and impounding of the buses of the petitioner before the competent authority. The competent authority is directed to decide the same as expeditiously as possible in accordance with law. In case the respondents fail to decide the applications of the petitioner within the prescribed period then the respondents are directed to allow the petitioner to operate its buses in route No. 5 in terms of order of the D.C.O. Dated 18.2.2005 read with, order dated 7.42005 of District R.T.A., till the decision of the applications of the petitioner. Office is directed to provide copy of this order to both the learned law officers for onward transmission to the respondents for necessary action and compliance.
14. With these observations, the writ petitions are disposed of. .