' The supra titled writ petitions have been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974.
2. As common questions of facts and law are involved in the instant writ petitions, therefore, we proposed to decide the same through this single judgment.
3. Precise facts forming background of writ petition No, 1054/2013 are that petitioners are engaged in the transport business who are plying Busses and Hiace on the routes from Muzaffarabad to Authmuqam, Sharda and Kail, after obtaining route permits under the Motor Vehicles Ordinance and claimed to pay all the taxes regularly. It is alleged that official respondents in collusion with each others with mala fide intention and in violation of Motor Vehicles Ordinance, by discriminating against the petitioners, in derogation of their fundamental rights allowed respondent No, 7 to operate Busses on the routes of Muzaffarabad to Authmuqam, Sharda and Kail. It is stated that the said act of respondents has deprived of the petitioner's from opportunity of fair competition and tantamount to snatch their fundamental rights of trade and business resulting to snatch right to lives as well, hence, they construed to file the instant Constitution petition.
3. The official respondents No, 1 to 6 despite service failed to file written statement, therefore, they were proceeded ex parte vide order 24.09.2013. However, respondents No, 7 and 8 have controverted writ petition by filing comments which were treated as written statement, wherein, it is stated that petitioners have got no locus standi to file the instant writ petition. It is averred that NATCO service is a statutory Corporation established by the Federal Government under Chapter 5 Section 70 of Motor Vehicles Ordinance, 1965, owned by the Federal Government through Ministry of Kashmir Affairs and Northern Areas. It is alleged that monopoly is not a fundamental right and petitioners failed to abide the fare fixed by the Government from time to time. It is also alleged that petitioners are receiving huge fares on the routes from Muzaffarabad to Authmuqam comparatively from other routes. The unfit vehicles are also causing the deaths of lives of the passengers, hence, the best transport facility is the fundamental right of subject of District Neelum on the basis of competition. It is averred that operation of NATCO through (sic) Jammu & Kashmir including the route of Muzaffarabad to Authmuqam is approved by the concerned authority in the light of codal provisions i,e, Motor Vehicles Ordinance, 1971 and prayed for dismissal of writ petition.
4. Precise facts of Writ Petition No, 1287/2013 are that petitioners are associated with public transport business in Azad Jammu & Kashmir at different routes i,e, Muzaffarabad to Rawalpindi, Karachi, Neelum Valley and Muzaffarabad to Lahore, etc. It is stated that petitioners are operating transport business in Azad Jammu & Kashmir for a long time after obtaining route permits from the concerned authority. It is alleged that respondent No, 2, who is holding the portfolio of Minister Transport is creating unnecessary hurdles in the business of petitioners in order to achieve his political desires and personal benefits. The said respondent started a transport service in the name and style of ATTCO under the flag of his political party in garb of public interest. It is averred that respondent No, 7 has got registered a company in the name and style as Azad Jammu & Kashmir Transport and Tourism (Pvt.) Company Limited and started Transport Service from Muzaffarabad to Rawalpindi. The memorandum of association of the said company reveals that company has been established for providing facilities to tourists in Azad Jammu & Kashmir. It is alleged that official respondents in connivance with respondents No, 2 and 7 in violation of the Motor Vehicles Ordinance as well as other enabling laws by discriminating against and in derogation of fundamental rights of trade and business operated ATTCO which act jeopardized the rights of the petitioners. It is averred that in fact the company is managed by the wife of respondent No, 2 and his real brother. It is further claimed that it was mandatory under the relevant law that before granting route permit an opportunity of hearing should have been granted to the transporters already engaged in the business.
5. The respondents have resisted writ petition by filing written statement, wherein, it is stated that petitioners are not aggrieved persons within the meaning of Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, therefore, writ petition is not maintainable. It is further averred that alleged vehicles are not plying under the ownership of respondent No, 7 which are in the ownership of M/s. Plung QUNGOI Motors (Pvt.) Ltd. Company which is route permit holder issued by the Punjab Provincial Transport Authority, Lahore and endorsed by the Regional Transport Authority, Azad Kashmir in accordance with the provisions of Motor Vehicles Ordinance. It is alleged that this Court has got no jurisdiction to adjudicate upon the matter against the stage carriage permit issued by the Punjab Transport Authority, Lahore. It is further claimed that the owner Company of the Vehicles is not impleaded as party in the line of respondents, therefore, writ petition is liable to be dismissed due to non-joinder of necessary party. It is alleged that petitioners filed the instant writ petition to maintain their monopoly in the public transport areas which cannot be warranted under law, who have also observed strikes and other illegal measure to protect their illegal acts. It is alleged that petitioners belong to transport monopoly group who have deprived of the subjects of State from their right of safe and reasonable travelling opportunities. It is further stated that only 10 Hiace are plying in accordance with Motor Vehicles Ordinance which have provided good facilities of travelling to the public-at-large. It is also averred that writ petition is liable to be dismissed as the petitioners have already filed a suit before the Court of Civil Judge, Muzaffarabad, which was dismissed on merits and prayed for dismissal of writ petition.
6. The learned counsel for petitioners, Mr. Sadaqat Hussain Raja, vehemently argued that ATTCO is basically a company of respondent No, 2, who is holding portfolio of Minister Transport. The learned counsel, while referring Memorandum and Articles of Association of ATTCO Company dated 23.05.2013, submitted that, Mrs. Nigar Tahir is wife and Muhammad Sadiq Khokhar is real brother of respondent No, 2, who are share-holders of the company. The learned counsel, while referring form 29 of Azad Kashmir Transport and Tourism Company further submitted that Mrs. Nigar Haider is Chief Executive and Muhammad Sadiq Khokher, brother of respondent No, 2 is Director of the Company, which is in fact launched by respondent No, 2 who has created lot of troubles to the petitioners due to his political influence. The learned counsel further submitted that while issuing route permit in favour of ATTCO, the basic provisions of Sections 46 and 49-A of Motor Vehicles Ordinance were violated. The learned counsel pressed into service that Regional Transport Authority-respondent has in fact issued route permit in favour of Azad Kashmir Transport Company (Pvt.) Ltd. (ATTCO) just to oblige respondent No, 2 in violation of Rules 56 and 58 of Motor Vehicles Rules, 1973, hence, submitted for acceptance of writ petitions.
7. The learned counsel Mr. Sajid Hussain Abbasi owned the arguments of the learned counsel for petitioners Mr. Sadaqat Hussain Raja and craved that route permit was issued against statutory law, hence, the same is liable to be quashed.
8. The learned counsel for respondents, Mr. Sharafat Hussain, vehemently argued (sic) have got no locus standi to file the instant writ petitions, which merit dismissal on this solitary ground. The learned counsel further submitted that disputed vehicles are not plying under the ownership of Azad Kashmir Transport and Tourism Company, which are falling under the ownership of M/s. Plung QUNGQI Motors (Pvt.) Ltd. Being route permit holder issued in its favour by the Punjab Provincial Transport Authority, Lahore and endorsed by the Regional Transport Authority, Azad Kashmir in accordance with the provisions of Motor Vehicles Ordinance, 1971. The learned counsel further argued that the instant writ petitions have been filed by the petitioners to maintain their monopoly in the public transport, who did not bother to obey laws of the land and even fares fixed by the Government for different routes were not observed by them who time end again observed strikes for male fide reasons to protect their illegal acts. The learned counsel pressed into service that Hiace of the petitioners consisting of 14 seats however, 18 passengers are being seated by them, hence, the petitioners are law breakers and not entitled for discretionary relief of this Court. HO further submitted that subjects of District Neelum have been deprived of their right to safe and reasonable travelling opportunity due to monopoly of petitioners. The learned counsel also argued that in the instant matter the petitioners have filed suit in the Civil Court which was dismissed on merits by the Senior Civil Judge, Muzaffarabad, therefore, writ petitions are bad in law, which may be dismissed accordingly.
9. After hearing the learned counsel for parties at great length, we have perused the contents of writ petitions and examined the appended record with utmost care.
10. Before considering arguments of the learned counsel, it is appropriate to reproduce Section 49 of the Azad Jammu & Kashmir Motor Vehicles Ordinance, 1971 which reads as follows:--- "Procedure of Regional Transport Authority in considering application for stage carriage permit.- - (1) A Regional Transport Authority shall, in deciding whether to grant or refuse a stage carriage permit, have regard to the following matters, namely:---
(a) The interest of the public generally;
(b) the advantages to the public of the service to be provided, including the saving of time likely to be affected thereby and any convenience arising from journeys not being broken;
(c) the adequacy or otherwise of the existing passenger transport services, by any means, between the places to be served;
(d) the benefit to any particular locality or localities likely to be afforded by the service;
(e) the operation by the applicant of other transport services and in particular of unremunerative services conjunction with enumerative services;
(f) whether the applicant will be able to maintain a reserve of twenty-five (sic) of the vehicles meant for the route to meet abnormal seasonal traffic or an emergency such as the breakdown of vehicles;
(g) the capital actually invested and to be in the undertaking;
(h) whether the applicant is a joint stock company registered under the Companies Act, 1913, Act VII of 1913, or a Cooperative Society registered under the Co-operative Societies Act, 1925, or any other law for the time being in force in the Province relating to cooperative societies or is firm or an individual;
(i) Whether the corporation is already operating on the route or part of the route or intends to operate on the route or part of the route,
(j) the condition of the roads included in the proposed route or route and shall also take into consideration any representations made by persons already providing road transport facilities along or near the proposed route or routes or by any local authority or police authority within whose jurisdiction and part of the proposed route or routes lies or lie, and any representation made by an association interested in the provision of road transport facilities.
(2) A Regional Transport Authority shall refuse to grant a stage carriage permit which appears from any time table furnished under Section 48 that the provisions of this Ordinance relating to the speed at which vehicles may be driven are likely to be contravened: ' Provided that before such refusal an opportunity shall be given to the applicant to amend the time table so as to conform to the said provisions."
' The Government-respondent while exercising power is visualized by Section 46(1) of the Azad Jammu & Kashmir Motor Vehicles Ordinance, 1971 by notification in the official Gazete, may constitute Regional Transport Authority to exercise and discharge throughout regions the powers and functions as specified in sub-section (6) of Section 46 supra. As per sub-section (2) of Section 46 a Regional Transport Authority shall consist of such number of Government Officers as Government may think fit to appoint but no person who has any financial interest whether as proprietor, employee or otherwise in any transport undertaking shall be appointed or continue as a member of the Regional Transport Authority. If any person who is appointed as a member of the Provincial or Regional Transport Authority has any such interest in a transport undertaking, he shall forthwith give notice of the same in writing to Government. An application for permit shall be made to the Regional Transport Authority of the region, in which it is proposed to use the vehicle or vehicles as the case may be. An application for a permit to use a motor vehicle as a stage carriage shall contain the type and seating capacity of the vehicle in respect of which application is made; route or routes on which or the areas within which, it is intended to use the vehicle; the time table, if any, of the service to be provided whether the applicant is a joint stock company registered under the Companies Ordinance, 1984, or a Cooperative Society registered under the Co-operative Societies Act, 1985 or any other law for the time being in force, whether the applicant is an individual and is resident of the area in which the route falls. The Regional Transport Authority shall in deciding whether to grant or refuse a stage carriage permit after having regard to the following matter. The interest of the public generally; the advantages to the public for the service to be provided; the adequacy or otherwise of the existing passenger transport services, by any means, between the places to be served; the benefit to any particular locality or localities likely to be afforded by the service; the condition of the roads included in the proposed route or routes and representations made by persons already providing road transport facilities along or near the proposed route or routes or by any local authority. It reflects from record that while granting route permits the adequacy of the existing transporters and petitioners who had already provided road transport facilities on the disputed routes were brushed aside by the Regional Authority.
11. The contention of the learned counsel for respondents that petitioners have got no locus standi to file the instant writ petition is misconceived. The petitioners are representatives of transporters as well as transporters who are plying Busses and Hiace at the disputed routes, therefore, due to issuance of permits in favour of ATTCO and NATCO they are surely aggrieved, hence, preliminary objection is overruled.
12. The contention of the learned counsel for respondents that due to non-joinder of M/s. QUNGQI Motors (Pvt.) Ltd. a necessary party, writ petitions are not maintainable is also baseless. The grievance of petitioners is against newly established business of ATTCO and NATCO which have been impleaded party in the line of respondents.
13. The contention of the learned counsel for the respondents that petitioners belong to monopoly group of transporters who instead of 10 passengers in carriage vehicles seated 18 passengers pertains to local administration and the concerned traffic police. In case of violation of any provisions of Motor Vehicles Ordinance, 1971 and rules framed thereunder, the concerned authorities shall take necessary legal action against such transporters who are violating the laws.
However, on this ground solicited relief cannot be declined to petitioners.
14. The contention of the learned counsel that few of the petitioners have also filed a civil suit before Senior Civil Judge, Muzaffarabad, and after hearing, the suit was rejected by the said Court, hence, writ petitions are not maintainable is also misconceived. A perusal of order of the Trial Court reveals that suit was rejected for want of jurisdiction and on the ground that petitioners have filed the instant writ petitions before this Court, which objection is also turned down.
15. We are of considered view that before grant of route permits by Provincial Transport Authority conditions mentioned in Section 49 reproduced above and all other enabling provisions shall be adhered to. Admittedly the above conditions have not been complied with. Neither any report from the concerned authority has been obtained nor the petitioners have been heard. The requirements for grant of route permits by Regional Transport Authority are same, hence, before endorsement the same are necessarily to be complied with.
16. The nub of above discussion is that by issuing writ of prohibition the respondents jointly and severally are restrained from plying Busses/Hiace on the basis of permits already issued in favour of the concerned respondents ATTCO and NATCO. However, the said respondents, companies will be at liberty to move fresh application(s) in accordance with prescribed law for the purpose of obtaining route permit/permits. The Regional Transport Authority before issuing permit(s) shall provide an opportunity to representatives of transporters-petitioners. The adequacy or otherwise of the existing transport services shall also be considered by the Regional Transport Authority. The route permits already issued in favour of ATTCO and NATCO respondents are hereby quashed. Writ petitions are disposed of in the manner as indicated herein above. The costs shall follow the eventualities.