' SYED HAMID ALI SHAH, J.---This single judgment shall dispose of Intra-Court Appeals Nos. 202 of 2006 and 609 of 2002 as common questions of law and fact are involved in these appeals.
2. Background of the case in hand, according to the assertions of the appellant is that originally the parking fee (Adda fee) of general bus stand Badami Bagh, Lahore was fixed at one rupee per vehicle for 24 hours, subsequently enhanced to Rs,7 per vehicle for 24 hours and ultimately to Rs,500 per trip/one seat fare of the bus to end journey per trip, vide Notification No,123-D.C(PF)TT, dated 28-6-2005. Respondent No,5, D.C.O. Issued the Notification for enhancement of fee, exercising his powers under sections 6 and 8 of West Pakistan .Bus Stand and Traffic Control (Lahore) Ordinance, 1963. Enhancement of parking fee, was assailed by invoking constitutional jurisdiction of this court on the grounds that West Pakistan Motor Vehicles Ordinance, 1965 has repealed West Pakistan Bus Stand and Traffic Control (Lahore) Ordinance, 1963.Former statute is no more in existence and enhancement of fee under repealed provisions of law, is illegal. Learned Judge in Chamber, vide order dated 3-5-2006, dismissed the petition (W.P. No,13486 of 2005) on account of availability of alternate remedy of appeal against the order of D.C.O. Before the Secretary Local Government, hence I.-C.A. No,202 of 2006. Another appeal (I.-C.A) No,609 of 2002 has been filed against order dated 10-7-2002 of learned Judge in Chamber in W.P. No,446 of 2001 involving similar controversy.
3. Learned counsel for the appellant has contended that order passed under Local Government Ordinance, 2001 is appealable before Secretary Local Government. The impugned order of respondent No,5, was not passed under Ordinance, 2001,but the same was passed under West Pakistan Bus Stands and Traffic Control (Lahore) Ordinance, 1963, which does not provide the remedy of appeal. No other remedy except for a constitutional petition was available to the appellant and the petition under appeal was wrongly dismissed. Learned counsel has then submitted that West Pakistan Motor Vehicles Ordinance 1965 was promulgated on 8-6-1965, being later statute, repeals by implication, the earlier statute on the same subject. Learned counsel has referred to the cases of Syed Matloob Hassan v. Brooke Bond Pakistan Ltd. Lahore 1992 SCM R 227 and Muhammad Hanif and another v. The State 2006 SCM R 249 to contend that two statutes having conflicting provisions cannot go side by 'side and the provisions of statute later in time shall prevail. Learned counsel added that respondent No, 1/City District Government is bound to obtain license under Motor Vehicles Rule 253 (Motor Vehicle Rules 1969) framed under Ordinance, 1965, for permission to use a place as bus stand in either category (i,e, Category A to D). Bus Stand in question, was established without such permission of R.T.A. Regional Transport Authority vide Rule 263 is the regulatory body and its function has now been assigned to District Transport Authority.
No parking fee can be levied or charged unless stand is declared by competent Authority as 'C'
Class bus stand or any other category. It was contended that Ordinance XIX of 1965 is only applicable to Badami Bagh. Learned counsel has emphasized that Ordinance, 1965, as per item 29 of Schedule 6 to the Constitution, is protected under the 17th amendment. Learned counsel then submitted that Regional Transport Authority has the power to fix fee or the maximum fee under Sub-Rule 5 of the Rule 253 of Rules, 1969 (ibid). It was further submitted that increase in Adda fee is violative of Rules 52 to 57. It was lastly contended that impugned collection of parking fee, is violative of constitutional rights of the appellant.
4. Learned counsel for the respondents, on the other hand, has submitted that Ordinance XIX of 1963 is valid law and was never repealed. A statute always remains enforced unless specifically repealed. It was then contended that Ordinance, 1963 was never repealed and the same is valid/existing law. It was further contended that according to sections 6 & 8 of the Ordinance, 1963, enhancement in Adda fee, is legally permissible. Learned counsel has further submitted that according to the devolution plan through Punjab Local Government Ordinance, 2001 and rules framed under section 31 (supra), various functions have been assigned to different groups. The tasks relating to transport are mentioned at serial No,12(iv) in Schedule I of the Punjab District Government Rules of Business 2001. An appeal against the order passed by the Local Government or it's functionary in pursuance of Ordinance, 2001 or Rules thereunder lies to prescribed authority.
According to Rule 2 of Schedule I, order of City District Government is appealable before concerned Secretary of the Government, which in the instant case is Secretary Transport. It was lastly contended that the appellants have been paying the parking fee/Adda fee regularly and they are thus estopped by their own conduct to raise any objection to challenge the same through constitutional petition.
5. Heard learned counsel for the parties and record perused.
6. West Pakistan Bus Stand and Traffic Control (Lahore) Ordinance, 1963, was promulgated to remove and prevent traffic congestion and regulate vehicular traffic within the limits of Lahore. The Ordinance, 1963 is special law promulgated for Lahore and is still intact and operative. The rules under this Ordinance were framed in the year 1972, after the promulgation of West Pakistan Motor Vehicles Ordinance, 1965. Framing, of rules subsequent to promulgation of Ordinance, 1965, is indicative of the fact that Ordinance, 1963 was not repealed. Further, various enactments were repealed on promulgation of .Ordinance, 1965, as contemplated in its section 122. The enactment which stood repealed are specified in 12th Schedule. Perusal of the schedule reflects that Ordinance, 1963, finds no mention in it. Exclusion of Ordinance, 1963 from 12th Schedule is meaningful which conveys the intention of Legislature that Ordinance, 1963, is existing law. Concept of repeal by implication, is not relevant because Ordinance, 1965, has expressly repealed certain enactments and exclusion of Ordinance, 1963 leave the statute valid and existing law. Ordinance, 1963 according to its preamble is to regulate vehicular traffic within Lahore' while Ordinance, 1965 extends to whole of the Province of Punjab. The provisions of Ordinance, 1963 are saved, as both the statutes are not in conflict with each other. However, in case of conflict between any of the provisions of these two statutes, the conflicting provisions of Ordinance, 1965 so far as it relates to the traffic of City of Lahore shall be inapplicable. The Kar. 83.
7. Lahore Municipal Corporation (defunct) has now been succeeded by the City District Government, Lahore. The functions assigned to (defunct) Lahore Municipal Corporation under the provisions of West Pakistan Bus Stand and Traffic Control (Lahore) Ordinance, 1963, now vests with City District Government. The order passed by the District Coordination Officer under the new set up (devolution plan) is appealable to the Secretary, which remedy has not been availed by the appellants. It was rightly held by the learned Judge in Chamber that the petition without exhausting the alternate remedy was not competent. The impugned order of the learned Judge in Chamber does not call for any interference in this appeal. Additionally, in view of the availability of remedy of appeal before the Secretary, Government of Punjab, the decision of the learned Judge in Chamber cannot be assailed in Intra Court Appeal in view of the bar contained in section 3(2) of the Law Reforms Ordinance, 1972.
8. For the foregoing, these appeals have no force and are accordingly dismissed.