Syed Latif Hussain Shah, an Advocate, resident of Eimanabad, District Gujranwala, by means of this petition has challenged the vires of the order of the District Magistrate, dated 11-I1-1980, passed under clause (m) of section 33-A of the Police (Amendment) Act, 1956 (hereinafter referred to as the 'Act').
2. The factual position according to the petitioner is : Population of Town Committee, Eimanabad, a suburb of Gujranwala, is about 20,0411. Gujranwala City is only 11 miles from Eimanabad. Several local buses ply from Eimanabad and the near about areas to Gujranwala. These buses are mostly used by students, factory workers, local lawyers and the litigants wlxo have to get to the City and the District Courts.
Petitioner's case is that as a result of the impugned order he and a section of the public has been put to lot of inconvenience. More time is consumed for getting to the destination ; journey has become more expensive and inconvenient, buses have to take a long route, the impugned order as such is neither for `public safety' nor 'convenience' and hence it is without lawful authority and of no legal effect.
3. Learned counsel appearing on behalf of the petitioner raised number of contentions : It was submitted that respondent No. 2 has misconstrued and misused section 33-A of the Act. Learned counsel submitted that the impugned order is discriminatory, because only private buses have become the target of the District Magistrate. No restriction has been placed on the Government Transport ; even the long vehicles are permitted to enter the City. The order was also attacked on the ground that it was arbitrary.
Learned counsel further submitted that it was incumbent on the part of the District Magistrate to have held an enquiry and he should have at least given a reasonable opportunity of hearing to those who had been affected by the impugned order.
Another point raised was that the unpugned order has resulted in the change of the route. This power is not vested in the District Magistrate. The only competent authority to do so was the Regional Transport Authority. Learned counsel submitted that the District Magistrate should have consulted that Authority in this matter before passing the impugned order. In support of his contention learned counsel relied on .The Mongornery Flour & General Mills Ltd. v. The Director, Food Purchases, West Pakistan and others (PLD 1957 Lab. 914) and Messrs East & West Steamship Co. v.
Pakistan (PLD 1958 SC (Pak.) 41). In the former case it was observed "It should be remembered that no discretion vested in any executive officer is an absolute and arbitrary discretion. The discretion is vested in him for a public purpose and must be exercised for the attainment of that purpose. Even though there be no express words in the relevant legal provision to that effect,' the discretion is always circumscribed by the scope and object of the law that creates it and has at the same time to be exercised justly, fairly and reasonably."
"If the petitioners' allegations are true they could have, by taking proper proceedings in the High Court, questioned the improper exercise of discretion by the Shipping Authority, and if it had been male out that that Authority made any unreasonable discrimination between the petitioners and others, I have no doubt that the High Court by issuing an appropriate writ would have controlled such improper exercise of that discretion because there can be little dispute about the proposition that where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party, and it seems to me to be equally clear that if the allegation be that a statute is being administered by a functionary in a discriminatory manner, his action can be successfully called in question on the ground that it offends against Article 5 of the Constitution."
4. I have also heard the learned Assistant Advocate-General, who supported the impugned order on the ground that the; District Magistrate acted in accordance with law. The sole purpose of the order was to ensure public safety and convenience. This has been done and the District Magistrate is the final authority to do so.
Learned Assistant Advocate-General relied on West Pakistan Bus Stand and Traffic Control (Gujranwala) Ordinance, 1963 (West Pakistan Ordinance XX of 1963), with special reference to section 6 of the Ordinance, which deals with the powers of the District Magistrate. He cited the following cases in support of his contention that there was no justification to challenge the impugned order in the constitutional jurisdiction, the petition, as such is not maintainable and even otherwise the order has been passed with lawful authority : Lahore Improvement Trust -v.
Custodian of Evacuee Property (PLD 1971 SC811) where at page 837 it has been observed: "Another principle attracted in the case is that before an order passed by a public authority is struck down it is the duty of the Court to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance to which the impugned order has been passed." and Muhammad Hussain Munir and others v. Sikandar and others (PLD1974SC139).
5. Before proceeding further, I may observe that respondent No. 1 has not filed any. Written statement. A photostat copy of the report dated 18-1-1981, has been placed on the record on his behalf. I shall refer to this report later on.
Section 33-A of the Act deals with the powers of the District Magistrate regarding the use of streets etc. Subsection (1) lays down that in any town in which- he thinks fit, he may, from time to time and subject to such order as may have been made by a Municipal or other authority empowered in that respect, wake rules or order.
It then defines certain type of orders which are envisaged in the aforesaid provision. The relevant provision for the purpose of disposal of this petition is clause (m) of subsection (1). Which is to the following effect .
"Regulating the movement of persons, animals and vehicles at such times and such places at which, in the opinion of the Magistrate, special regulations may be necessary for the public safety and convenience."
A perusal of the aforesaid provision shows that the District Magistrate has been empowered to pass certain type of orders including the one referred to above.
6. The next question to be examined in this sequence is whether the District Magistrate rightly construed and applied the aforesaid provision of law. The sole criterion for passing such an order is the "public safety and convenience". It is to be noted that it is public safety and convenience and not or convenience (the underlining* is mine). This expression, therefore, is to be read, construed and applied conjunctively, which means that the District Magistrate is to take into consideration both the things; if one of them is .Missing then such an order would not be legally maintainable . It is neither desirable nor proper to lay down any hard and fast rule for determining `public safety and convenience', because it depends upon a particular situation and facts and circumstances of each case. Nevertheless, the discretion vested in the District Magistrate is to be exercised reasonably and equitably.
Before proceeding further I would like to dispose of the submission of the learned Assistant Advocate-General with regard to West Pakistan Ordinance, 1963. This Ordinance is of no help to him, because as is clear from the impugned order it was passed under section 33-A of the Act and not under the aforesaid Ordinance, hence section 6 of the Ordinance is of no importance.
7. The main stand of the respondents is on the report dated 18-1-1981. I have perused this.
According to para. 2 of the report a large number of deputations from the city from various walks of life called upon and requested the District Magistrate to take suitable steps in this connection. A meeting was held on 2-11-1980, to solve the traffic problem. It was attended to by the Superintendent of Police and other concerned officers of different Departments and notables of the city.
Hence, it is to be considered whether the contents of paras. 2 and 7 are sufficient in law from which it could be inferred that the impugned order was passed keeping in view public safety and convenience. I have no hesitation in answering this question in the negative. The reasons for that are: it is only private buses whose entry has been banned into the city. One Shabbir Ahmad son of Muhammad Bashir, present in Court, filed an affidavit to that effect. This has not been controverted by the respondents. Government Transport and Long Vehicles are not hit by this order. No reason has been given for giving exemption to them.
The transporters who have been affected by the impugned order were not given an opportunity of hearing. They have been condemned unheard.
According to para. 8 of the report, if the impugned order is set aside then "road accidents will again be on the increase, resulting in the loss of valuable human lives". This is a flimsy reason. It is a matter of common knowledge and I can take judicial notice of the fact that when one enters Gujranwala City, one finds hardly one or two traffic constables, who are busy otherwise than with the traffic duty.
There is Highway Patrol as well, but it is always invisible. The only time it becomes visible is when one finds the sign of "Highway Patrol Reporting Centre".
There is no mention of the Regional Transport Authors ty in the report, which means that the said authority was not consulted. I think the participation of the authority would have been helpful to the District Magistrate.
8. I have gone through the cases referred to by the learned counsel for the parties. The decisions cited by the learned Assistant AdvocateGeneral are not only distinguishable but also, not helpful to the learned Law Officer.
As already observed by me, the respondents have not filed any reply., The legal effect of that is that the averments in this petition going unchallenged. I do not think mere report by respondent No. 1 is sufficient in law to controvert the pleadings of the petitioner.
Number of accidents can definitely be reduced if there is proper control by the traffic police and surveillance by the Highway Patrol.
9. After taking all the relevant facts and legal aspects into consideration I am of the view that the impugned order is arbitrary and discriminatory. The discretion exercised by the District Magistrate is, therefore, neither .Fair, and reasonable nor equitable.
The impugned order as such is without lawful authority and of no legal effect. The same is hereby set aside. The petition is accepted with no order as to costs.