IBAD-UR-REHMAN LODHI J.--With the consent of learned counsel for the parties, the hearing of this petition is being treated as pacca one.
2. District Regional Transport Authority, Rawalpindi in its meeting held on 08.02.2017 decided to impose restriction on the movement of motor cab Rickshaws on Mall Road, Peshawar Road, Bank Road, Kashmir Road, Adam G Road, Mehfoz Road, Civil Lines, R.A. Bazar and Airport Road. It was further decided in the said meeting that the imposed restriction will be incorporated in the route permits of such vehicles as a condition of such permits.
The petitioner, who is not only a distributor of motor cab Rickshaws, but also owner of number of such Rickshaws being run by the drivers, has challenged such condition imposed by the authority.
3. Report and parawise comments were called and Deputy Commissioner/Chairman District Regional Transport Authority, Rawalpindi-respondent No,1 by furnishing such report and parawise comments has taken a plea that on the recommendations of Chief Traffic Officer, Rawalpindi, such condition was imposed. Reportedly, the Chief Traffic Officer recommended such restriction upon motor cab Rickshaws in view of the stated traffic congestion in cantonments areas of Rawalpindi.
Such Traffic Officer also apprehended the possibility of creation of some security hazards, if such Rickshaws are allowed to operate in the cantonment areas.
The maintainability of Constitutional petition without availing the right of appeal as provided under Rule 96 of Motor Vehicles Rules, 1969 was also questioned.
4. The minutes of meeting of the District Regional Transport Authority, Rawalpindi held on 08.02.2017 reveal that the meeting was chaired by the Deputy Commissioner, Rawalpindi and it was attended to by SP Saddar on behalf of City Police Officer, Rawalpindi, Chief Traffic Officer, Rawalpindi, SDO Highways on behalf of Executive Engineer (Highways), Rawalpindi and Secretary District Regional Transport Authority, Rawalpindi. None from public, owners or drivers of motor cab Rickshaws were either invited to participate in such meeting nor any such person attended such meeting. Although in the impugned order, no provision of law supporting such condition has been referred, however, while filing report and parawise comments, the provisions of Sections 51 and 52 of Provincial Motor Vehicles Ordinance, 1965 (hereinafter to be referred as Ordinance) are pleaded in support of the impugned restriction.
Section 45(2) of the Ordinance empowers the Government (Government of Punjab in this case as defined in Section 2(12) of the Ordinance) to cancel generally or in relation to a specified area any permit or class of permit granted under the Ordinance in respect of transport vehicles and such restriction would only be effective, when it is notified accordingly. Such proceedings are subject to provision of hearing to the representatives of interest affected persons and publication of notification in the official gazette.
5. The respondents have relied upon the provisions of Section 52 of the Ordinance, which too provide the authority to decide whether to grant or refuse a contract-carriage permit and while deciding such matter, the authority will have to keep regard into consideration to the extent to which additional contract-carriage may be necessary or desirable in the public interest.
The respondents have nowhere shown as to whether before imposing impugned restriction upon motor cab Rickshaws to move into the restricted areas, any objections or proposals were invited from the persons, who were possibly to be affected from such decision and thus, the impugned order is hit by the principle of natural justice.
The process of decision making by public functionaries must exhibit transparency and failure on the part of such authority to observe basic rules of natural justice or failure to act with procedural fairness towards persons, who would be affected by decision, would render such decision susceptible to judicial review and this Court, while exercising its Constitutional jurisdiction in such like cases, where the impugned decision suffers from basic defects and lacks transparency, is competent to entertain such like Constitutional petitions ignoring the fact that any alternate remedy is provided to the affected persons. The remedy of appeal as has been argued by the learned Assistant Advocate-General in view of Rule 96 of Motor Vehicles Rules, 1969 before the same Provincial Authorities in fact would be an exercise in futility. Since the authorities in such hierarchy are not likely to take a decision contrary to the policy of their regional chapter. Even otherwise, mere availability of alternate remedy is not a ground for holding Constitutional petition as non-maintainable without applying judicial mind to the question as to whether in fact an effective and efficacious alternate remedy was available and even availability of alternate remedy is not a matter affecting jurisdiction of Court to entertain Constitutional petition.
6. It is established after perusal of record that only a police report furnished by the Chief Traffic Officer has been made basis of the impugned decision. Such police report is not intended to be anything more than an expression of opinion by an authority interested in the maintenance of law and order. At the most such report can be taken in the nature of information supplied by the Police in order to assist the authority in making up its mind. The authority in fact has believed the recommendations of Chief Traffic Officer, which factually caused prejudice to a particular class by depriving them to enter into a lawful trade or business, which otherwise is guaranteed under Article 18 of The Constitution of Islamic Republic of Pakistan, 1973.
The Hon'ble Supreme Court of Pakistan in case titled "ARSHAD MEHMOOD and others v.
GOVERNMENT OF PUNJAB through Secretary, Transport Civil Secretariat, Lahore and others" PLD 2005 Supreme Court 193, while dealing with the subject of reasonable restriction within the meaning of Article 18 of The Constitution of Islamic Republic of Pakistan, 1973 has authoritatively held that the Government has the authority to regulate a lawful business or trade, but "reasonable restriction" does not mean "prohibition" or "prevention" completely, except under certain circumstances. The apex Court further held that within the meaning of proviso (b) of Article 18 of The Constitution of Islamic Republic of Pakistan, 1973, even the regulatory authority has to provide an atmosphere of free competition. Dealing with the franchise routes granted to a certain class, the apex Court has held in the referred report that if a right, which has accrued to a person or class of persons to carry on a lawful business, according to the Ordinance, the same would not be denied to them by introducing any franchise or imposing any unreasonable restriction. The report further goes on to hold that under licensing system, unless the business is unlawful or indecency is involved therein, the legislature can enact laws, which would effectively regulate the fields of trade, commerce and industry. At any rate, if restrictions are to be imposed to regulate such trade or business those should not be arbitrary or excessive in nature, barring a majority of persons to enjoy such trade. While interpreting the Constitution, it was the guiding principle provided by the apex Court for the Courts expecting that judicial approach should be dynamic rather than static, pragmatic and, not pedantic and elastic rather than rigid.
7. Having considered respective contentions of the parties, this Court reaches to the conclusion ,that the impugned decision suffers from number of defects. It lacks transparency and public functionary making such decision acted in complete oblivion to principles of natural justice. The affected persons were not afforded any opportunity to be heard or to place their respective stances before the authority at the time, when their lawful trade was under attack. A condition imposed on permit holders during the time, when their already issued permits were intact, is in fact an invasion by the Authority on their Constitutional right. The District Regional Transport Authority even was not competent to impose new conditions during valid existence of their already issued route permits and the same are not binding on the holders of route permit issued prior to the impugned decision.
The stated problem of creating traffic congestion and apprehension of security hazards or threats for particular areas situated within cantonment limits of Rawalpindi or Chaklala clearly indicates that one city has been divided into different parts and inhabitants of one city are distributed into different classes, resultantly, the residents of cantonment areas have been given a preferential consideration and which is not considered suitable for cantonment areas, is permitted to be prevailed in municipal areas of the same city. Such discriminatory attitude on the part of the public functionaries cannot be given judicial sanction.
Another reason for imposing such condition as has been referred by the respondents is stated substantial increase of motor cab Rickshaws. This aspect has to be kept in consideration while granting route permits and once a permit is issued, the permit holder has every right to operate in whole of the city. So far as, traffic congestion on account of large number of motor cab Rickshaws, as has been highlighted by the Chief Traffic Officer is concerned, in fact by raising such plea, the Chief Traffic Officer has admitted incapability of the traffic staff in regulating the traffic affairs. The Traffic Police is supposed to maintain the flow of traffic and not to allow traffic congestion, but it does not mean that to facilitate traffic staff by imposing unreasonable restriction, public transport vehicles are stopped to be operational on roads. The respective quarters of administration have to improve their skills and competence to deal with such issues. Imposing complete restrictions on lawful trade or business is not the answer to such problems.
8. The impugned order dated 08.02.2017 passed by the District Regional Transport Authority, Rawalpindi suffers from serious defects and is not sustainable. The same is result of an exercise of authority, which was never vested in respondents and thus, it is without, lawful authority. The same