MIANGUL HASSAN AURANGZEB, J. Through the instant writ petition, the petitioner , JZ Enterprises Pvt. Limited, impugns the letter dated 20.06.2019, whereby the Ministry of Communications (Government of Pakistan) informed the Chairman, National Highway Authority ("N.H.A.") and the Inspector General, National Highways and Motorways Police ("N.H.&M.P .") that "due to the concerns raised by the Industrial Sector" , it had been decided to put the axle load campaign on hold for a period of ninety days. Furthermore, the petitioner seeks a direction to the respondents to ensure compliance with the axle load limits prescribed in Schedule VI to the National Highways Safety Ordinance, 2000 ("the 2000 Ordinance") promulgated almost twenty years ago.
2. Mr. Arif Chaudhary , A.S.C. learned counsel for the petitioner , drew the attention of the Court to the provisions of the 2000 Ordinance and submitted that the efforts made by the Ministry of Communications to implement the axle load limit in Pakistan was resisted by vested interests; that as the result of a settlement with the transporters, extensions had been given for the implementation of the axle load limit; that due to such extensions, the National Highways were damaged due to overloading of heavy vehicles; that the deadlines given from time to time by the respondents for the implementation of the axle load limit had been unlawfully withdrawn; that vide letter dated 23.05.2019, the Ministry of Communications informed the Chairman, N.H.A. that the Minister for Communications had decided to implement the axle load limit on the National Highways and Motorways from 01.06.2019; that vide letter dated 27.05.2019, the Ministry of Communications requested the Chief Secretaries of the Provincial Governments to assist in the successful implementation of the axle load limit; that all of a sudden, vide impugned letter dated 20.06.2019, the Ministry of Communications informed the Chairman, N.H.A. and the Inspector General, N.H.&M.P . that it had been decided to put the axle load campaign on hold for a period of ninety days; and that the said decision was not just unlawful and arbitrary , but also in stark violation of the mandate of the 2000 Ordinance.
3. Furthermore, it was submitted that the decision to delay the implementation of the axle load limit was taken by the Ministry of Communications due to pressure exerted by transporters who want ed to earn more by violating the axle load limit fixed in Schedule VI to the 2000 Ordinance; that the said decision violated the fundamental rights of the public at large enshrined in Articles 4, 9 and 25 of the Constitution; that the axle load limit fixed in Schedule VI to the 2000 Ordinance is heavier than the axle load limits fixed by many other countries including the Republic of India, the People' s Republic of China, the Russian Federation, the Islamic Republic of Iran, and the United Kingdom of Great Britain and Northern Ireland; that the non-implementation of the axle load limit by the respondents amounts to criminal negligence since it results not just in a financial loss to the national exchequer but also in a loss of precious lives; and that the petitioner is also engaged in the business of transport but on account of showing compliance with the axle load limit fixed in Schedule VI to the 2000 Ordinance, it is unable to compete with the other transporters who are violating the axle load limit with impunity . Learned counsel for the petitioner prayed for the writ petition to be allowed and for the impugned letter dated 20.06.2019 to be set-aside. Learned counsel for the petitioner prayed for a direction to the respondents to show strict compliance with the provisions of the 2000 Ordinance by implementing the axle load limit set out in Schedule VI to the said Ordinance.
4. On the other hand, the learned Assistant Attorney-General submitted that the N.H.A. and the N.H.&M.P ., which are subordinate departments of the Ministry of Communications, were directed vide letter dated 10.07.2019 to ensure the implementation of the axle load limit in accordance with the requirements of the 2000 Ordinance; that the Ministry of Communications had also asked the N.H.A. and the N.H.&M.P . to submit a progress report regarding the implementation of the axle load limit; that the report furnished by the Ministry of Communications shows that vide letter dated 25.06.2019, the Ministry of Communications requested the Ministry of Industries and Production to provide the price asses sment of essential commodities "on the pretext that the axle load implementation" will enhance prices; that as per the report submitted by N.H.&M.P . on 31.07.2019, a total number of 60,816 vehicles had been checked by the N.H.&M.P ., out of which 4,418 overloaded vehicles were fined and goods from 462 vehicles were offloaded ; and that vide office memorandum dated 02.08.2019, the Ministry of Industries and Production had recommended that appropriate measures be taken by the Ministry of Communications for the axle load manag ement to protect road infrastructure and human safety without causing hardship to the business community and the interests of the public at large. The learned Assistant Attorney-General prayed for the writ petition to be disposed of bearing in mind the concerns express ed by the transport industry that the implementation of the axle load regime would cause an increase in the costs of transportation as well as the commodities to be transported.
5. Mr. Kashif Ali Malik, Advocate, learned Amicus Curiae came up with a well prepared brief on the subject and submitted that efforts had been made since more than two decades to place a maximum limit on the weight of load carrying trucks plying on the National Highways; that the National Highways Safety Ordinance, 1997 had lapsed by afflux of time; that the axle load limit under the 2000 Ordinance is part and parcel of the said statute and it is not within the executive domain to ignore the same or to exempt any party from its application; that the N.H.A.' s perspective on the maintenance of roads in Pakistan presented at the Institution of Engineers Pakistan on 17.03.2012 shows that 70% of trucks with 2 and 3 axles are overloaded whereas 40% of trucks with 4, 5 and 6 axles are overloaded; that the N.H.&M.P . ought to maintain a national register of those who offend or violate the axle load limit; that Pakistan' s economic development depends on the improvem ent and modernization of key transport systems; that transport contributes about 10% to GDP and has accounted for 20- 25% of Federal PDSP in recent years; and that it was the respondents' obligation to implement the axle load limits prescribed in the 2000 Ordinance in order to prevent the highways from further destruction.
6. The learned Amicus Curiae brought on record several photographs of overloaded trucks and damaged roads to demonstrate how damage to roads and highways was being caused by such overloading. He also referred to the Road Freight Strategy Paper prepared by the Engineering Development Board, Government of Pakistan, wherein it was recommended inter alia that the permissible load limits prescribed in the 2000 Ordinance should be strictly implemented. In support of his contentions, he also referred to the Comparative Study of Legislation and Stability Measures for Heavy Articulated Vehicles in Different Regions by Johan Wideberg and Erik Dahlberg; Axle Load Control: Case Studies, Lessons Learned, Guidelines by Mike Pinard; Comparison of the Performance of Heavy Vehicles by Dr.-Ing. K-P Glaeser and Mr. A. Ritzinger; Road Freight Strategy Paper prepared by the Engineering Development Board, Ministry of Industries, Production and Special Initiatives, Government of Pakistan; and Further Analysis of Axle Load Data by Khizer Javaid, National Transport Research Centre, Islamabad.
7. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.
8. This petition was first taken-up for hearing on 26.06.2019, whereon notices were directed to be issued to the respondents. Vide order dated 05.07.2019, the operation of the impugned letter dated 20.06.2019 was suspended by this Court. It was also ordered that this petition was to proceed as public interest litigation.
9. The 2000 Ordinance was promulgated on 02.09.2000, and Section 1(3) thereof provided that it shall come into force at once. The said Ordinance extends to the whole of Pakistan and was adapted and enforced in the Northern Areas through the National Highways Safety Ordinance (Adaptation and Enforcement) Order , 2001.
10. In Section 2 (iii) of the said Ordinance, "axle weight" has been defined to mean in relation to an axle of a motor vehicle, the total weight transmitted by the several wheels attached to the axle to the surface whereon the vehicle rests. The said Ordinance has clearly specified the gross weight limits for various types of trucks as well as axle load limits for single, tandem and tridem axles. In Schedule VI to the said Ordinance, which is reproduced in "Schedule-A" hereto, axle load limits for commercial vehicles plying on the National Highways and Motorways have been prescribed. The said Ordinance also provides the appropriate legal framework for such limits to be observed.
11. Section 43(1) of the said Ordinance provides that no transport vehicle shall be driven in such a state that the total weight of the vehicle and its load, including the weight of any trailer drawn by the vehicle and the load carried thereon or in such state that the weight carried on any axle of the vehicle or trailer , exceeds the limits specified in Schedule VI. Section 75(1) of the 2000 Ordinance provides that whoever drives a transport vehicle or causes or allows a transport vehicle to be driven on a national highway carrying in excess of fifteen per cent of the permissible load for a goods vehicle as laid down in Schedule VI and in excess of thirty percent of the number of passengers prescribed for a passenger carrier , shall be punished with imprisonment for a term which may extend to one month or with a fine which shall not be less than one thousand rupees and may extend to five thousand rupees, or with both. Furthermore, Sectio n 75(2) of the said Ordinance provides that a police officer in uniform, taking cognizance of an offence under sub-section (1), shall direct unloading of the excessive goods and passengers before allowing the vehicle to proceed. Section 83 of the said Ordinance provides that any police officer in uniform, or other person authorized in this behalf by the Government if he has reason to believe that a motor vehicle has been, or is being used without a valid registration, a valid permit or in contravention of any provision of Sections 27, 41, 51, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76 and 78, may seize and detain the vehicle and for this purpose take, or cause to be taken, any steps he may consider proper for the temporary safe custody of the vehicle.
12. In addition to the above, Section 43(4) of the 2000 Ordinance provides that no person shall drive or cause or allow to be driven on a national highway any motor vehicle or trailer (a) the unladen weight of which exceeds the unladen weight specified in the certificate of registration; (b) the laden weight of which exceeds the maximum laden weight specified in the certificate of registration; or (c) any axle weight which exceeds the maximum axle weight specified for the certificate of registratio n. Section 44 of the said Ordinance provides that any police officer in uniform, or anyone authorized by the Government in this behalf, if he has reason to believe that a goods vehicle or trailer is being used in contravention of sub-section (4) of Section 43, may require the driver to convey the vehicle to the nearest weighing device for weighment, and if the vehicle is found to contra vene the provisions of that sub- section, he may, by order in writing, direct the driver to convey the vehicle or trailer to the nearest place where facilities exist for the storage of goods, and not to remove the vehicle or trailer from that place until the laden weight or axle weight has been reduced or the vehicle has otherwise been treated so that it complies with the aforesaid provisions.
13. Having set out the statutory scheme in the 2000 Ordinance aimed at preventing overloading of vehicles, it is noted with dismay that the situation in Pakistan regarding checks on overloaded trucks plying on the National Highways is grim. Unchecked excessive overloading of vehicles has predominantly resulted in a premature failure of many roads and pavements in Pakistan, and this calls for stringent measures to enforce axle load limits. The average payload per truck has increased in Pakistan due to an increase in multi-axles. The expected socio economic benefits to be rendered by the highway system are rapidly lost when the highways fail prematurely due to excessive overloading of commercial vehicles. Good rideability of roads and an efficient transport system cannot be ensured without restricting overloading. The non-implementation of the axle load regime not just results in the rapid deterioration of the roads but also has the potential of causing road traffic accidents due to this deterioration, resulting in the loss of life and limb.
14. Highways and Motorways now represent one of the most costly of the public investments. Such heavy investments can only be justified by a return over a certain period and call for measures to ensure that no major repair or rehabilitation works are requir ed during their designed life. Axle load limits will not be digressed, if stringent measures for enforcing such limits are undertaken. Establishing additional weigh bridges than presently available for controlling axle loads is also the need of the hour .
15. The gross weight limits are governed by the number of axles and their configura tion. Axle load limits range from 7 to 13 tons for single axle and 14 to 22 tons for tandem axle in other countries. However , the limit of the maximum gross weight of articulated vehicles under the 2000 Ordinance is said to be the highest amongst several Asian countries.
16. The Ministry of Communication' s letters dated 23.05.2019 and 27.05.2019 show that 01.06.2019 had been fixed as the date for the enforcement of the axle load regime under the 2000 Ordinance. Vide letter dated 11.06.2019, the Ministry of Communications informed the Chief Secretaries of the Provincial Governments and the Inspector Generals of the Provinces as to the implementation of the axle load regime with effect from 01.06.2019.
All these were steps in the positive direction for the implementation of the axle load regime under the 2000 Ordinance. However , vide the impugned letter dated 20.06.2019, the Ministry of Communications decided to delay the implementation of the said regime for a period of ninety days on the pretext of addressing the concerns raised by the industrial sector . Such a ground is not envisaged by the 2000 Ordinance to delay the implementation of the axle load regime, the enforcement whereof is a statutory obligation.
17. As mentioned above, this Court, vide interim order dated 05.07.2019, suspended the operation of the letter dated 20.06.2019 issued by the Ministry of Communications, whereby the Ministry of Communications had decided to put the axle load campaign on hold for a period of ninety days. The passing of the said injunctive order was imperative since the letter dated 20.06.20 19 was in stark contrast with the mandate of law in Sections 43, 44, 75 and 83 read with the Schedule VI to the 2000 Ordinance.
18. The 2000 Ordinance was enacted in the public interest, and it is the obligation of the Ministry of Communications and the statutory bodies under its administrative control to ensure that every provision of the said Ordinance is implemented in letter and spirit. The said Ordinance does not give any discretion to the executive (the Ministry of Communications and the bodie s under its administrative control) or any public office holder to delay the enforcement of the axle load regime envisaged under the 2000 Ordinance or to exempt any class of persons from its operation.
19. There is no provision in the 2000 Ordinance which empowers the executive to either exempt or defer compliance with the requirements of the said Ordinance. The axle load limits have been fixed by statute and not by an executive fiat. Such limits can be altered only by the legislature by means of an amendment in the 2000 Ordinance and most certainly not by the executive alone. The requirements of the abovementioned provisions of the 2000 Ordinance and the reluctance on the part of the executive and statutory bodies to implement the axle load regime are mutually exclusive and canno t co-exist. The said provisions of the statute would override any order to the contrary issued by the executive or statutory bodies. Therefore, the said letter dated 20.06.2019, being at best an executive order , and contrary to the said provisions of the 2000 Ordinance, is not just unlawful but void and of no legal consequence. In holding so, reliance is placed on the following case law:-
(i) In the case of Shahzada Sikandar ul Mulk Vs. Capital Development Authority (PLD 2019 Islamabad 365), the Division Bench of this Court held that in case of conflict between statutory provisions and an executive order or policy , the statutory provisions would override an executive order or policy even if it had been approved by the Cabinet.
(ii) In the case of Muhammad Nawaz Vs. Principal Secretary to the Prime Minister of Pakista n (PLD 2017 Islamabad 207), it was held inter alia that acts or orders of the Federal Government which were not in consonance of the provisions of the relevant statutes would definitely be a nullity in law and void.
(iii) In the case of Azra Jamali Vs. Federation of Pakistan ( 2017 PLC (C.S.) 533 ), this Court held as follows:- "The executive has the authority to formulate a policy and the courts can interfere with it only if it violates the fundamental rights enshrined in the Constitution or is opposed to the provisions of the Constitution or is opposed to a statutory provision. ... The administrative actions and policies of the government which relate to the enforcement of fundamental rights of the people and are of public importance, must be framed in consonance with the policy of law and mandate of the Constitution."
(iv) In the case of Maqbool Hussain Asif Vs. Secretary , Local Government and Rural Development Department, Government of the Punjab (2006 PLC (C.S.) 1283), it was held inter alia that statutory rules framed in exercise of powers conferred by statute by the competent authority cannot be set at naught by the executive by issuing a circular .
(v) In the case of Iftikhar Ahmad Vs. The Collector , Lyallpor (PLD 1960 Lahore 736), it was held inter alia that executive instructions issued by the Government cannot supersede the express provisions of a statute.
20. The 2000 Ordinance was promulgated almost twenty years ago. This period was long enough for the executive and statutory bodies to have taken appropriate measures for the implementation of the axle load regime or for enforcing Sections 43, 44, 75 and 83 read with Schedule VI to the 2000 Ordinance . The right to travel by road is a well recognized fundamental right. This right can be exercised in a meaningful manner only if the roads and highways are prevented from deterioration caused by the plying of vehicles with loads in excess of the axle load limit fixed by statute. The implementation of the axle load regime is not just a public duty but also a statutory obligation on the part of the executive as well as statutory bodies, including the N.H.A. and the N.H.&M.P . The executive and the said statutory bodies cannot attribute redundancy to the said statutory provisions by ignoring their duty and obligation to implement the axle load regime under the 2000 Ordinance. It is well settled that redundancy cannot be attributed to statutory provisions. Reference in this regard may be made to the law laid down by the Hon'ble Supreme Court in the cases of Qaiser Javed Malik Vs. Pervaiz Hameed (2009 SCMR 846), Aftab Shahban Mirani Vs. Muhammad Ibrahim (PLD 2008 S.C. 779), Shoukat Baig Vs. Shahid Jameel (PLD 2005 SC 530), Collector of Sales Tax and Central Excise Vs. Mega Tech. (Pvt.) Ltd. (2005 SCMR 1166), Hafiz Abdul Waheed Vs. Mrs. Asma Jehangir (PLD 2004 SC 219), D.G. Khan Cement Company Limited Vs. Federation of Pakistan ( 2004 SCMR 456 ), and M. Aslam Khaki Vs. Muhammad Hashim ( PLD 2000 SC 225 ).
21. It is also well settled that when a provision of law is couched with penal consequences, then such a provision is considered as mandatory . Section 43(1) of the 2000 Ordinance prohibits a transport vehicle to be driven in a state where its weight carried on its axle excee ds the limits prescribed in Schedule VI to the 2000 Ordinance. A person who drives a transport vehicle on a national highway carrying in excess of 15% of the permissible load as laid down in Schedule VI is punishable under Section 75(1) of the 2000 Ordinance with imprisonment for a term which may extend to one month or with fine which shall not be less than Rs.1,000/- and may extend to Rs.5,000/-, or both.
Since Section 75(1) of the 2000 Ordinance provides a penal consequence for the violation of the axle load limits prescribed in Schedule VI to the 2000 Ordinance, the requirement to observe such limits can safely be termed as mandatory .
22. The intention of the legislature to require strict observance with the axle load limits prescribed in Schedule VI to the 2000 Ordinance is manifested by the adoption of negative terms in Section 43(1) of the said Ordinance. That is to say, the said provision ordains that no transport vehicle shall be driven which violates the axle load limits prescribed in Schedule VI to the said Ordinance. In the case of Saadat Khiyali, Ex-Chief Editor , Daily Mashriq, Lahore Vs. City Coordination Officer, City District Government, Lahore (PLD 2005 Lahore 190), it was held that provisions of law expressed in negative terms are generally to be considered as mandatory unless the intention of the legislature appears to the contrary . The intention of the legislature can be gauged from section 75(1) of the said Ordinance which places a duty and an obligation on the executiv e to penalize those drivers who violate the axle load limits prescribed in Schedule VI. In the case of State Life Insurance Corporation of Pakistan Vs. Director General, Military Lands and Cantonment, Rawalpindi (2005 SCMR 177), it was held inter alia that when the statute requires a public functionary to act in a particular manner, it must act in that manner , and the Courts have all the power to see as to whether he acted in that manner or not.
23. During the pendency of the instant petition, an application (C.M.A. No.3827/2019) was filed on behalf of the Supreme Council of the All Pakistan Transporters Association ("S.C.A.P .T.A.") , its President, its Chairman, and General Secretary for impleadment as parties/respondents in the instant petition. They were represented by Ch. Mushtaq Ahmed Khan, learned Senior A.S.C., who took the position that there was no provision in the 2000 Ordinance for disallowing an overloaded vehicle from continuing its journey and reaching its destination; that the said Ordinance only provides that the driver of a vehicle whose load is in excess of 15% of the permitted load can be penalized by the imposition of a fine; that the penalty provided in Schedule-VI to the 2000 Ordinance is ultra vires to the provisions of the said Ordinan ce itself; that after the order dated 05.07 .2019 was passed by this Court, the respondents have begun to stop vehicles carrying a load in excess of the permissible load and the vehicles were not being permitted to continue the journey to their destination; and that the petitioner is not even a member of the S.C.A.P .T.A..
24. Two other applications (C.M.A.No.3826/2019 and C.M.A. No.2833/2019) were filed for the impleadment of the applicants as respondents in the petition. The first application was filed by Karachi Steel Re-Rolling Mills whereas the second one was filed by Pakistan Ship's Agents Association. Their plea was that they were being adversely affected by the interim order dated 05.07.2019 passed by this Court. The applicant in C.M.A.No.3827/2019 had also filed an application (C.M.A.No.2829/2019) for the interim order dated 05.07.2019 to be vacated and for the petitioner 's application for interim injunction to be dismissed.
25. "The right of doing a lawful business must yield to the safety concerns of the commuters and the vehicles moving on the way." This was held by the Hon'ble Lahore High Court in the case of Iftikhar Hamayun Vs. National Highways and Motorways Police (2008 YLR 1614 ). True, it would cost more to transport goods on trucks which observe the axle load limits fixed by statu te as compared to transportation on trucks that violate such limits. Article 18 of the Constitution guarantees the right to conduct any lawful trade or business subject to such qualifications as may be prescribed by law. The right to conduct the trade or business of transp ortation by road can be termed as "lawful" only if it is carried out in accordance with such qualifications as are prescribed in the 2000 Ordinance in general and Sections 43, 44 and 75 read with Schedule VI of the 2000 Ordin ance in particular . Neither the Constitution nor the law guarantees a certain return to entrepreneurs engaged in the trade or business of transportation.
If their profits are reduced due to the observance with the requirements of the 2000 Ordinance, which is a statute made for the public good, then so be it. Therefore, I hold that such entrepreneurs or their association/S.C.A.P .T.A. have no locus standi to resist or oppose the prayer made by the petitioner for the enforcement of the axle load regime envisaged by the 2000 Ordinance. Consequently , the said C.M.A.s are dismissed.
26. In view of the above, it is declared that the requirement in Section 43 of the 2000 Ordinance to observe the axle load limits prescribed in Schedule VI to the 2000 Ordinance is mandatory in nature. Consequently , the respondents are directed to perform their statutory obligation by acting strictly in accordance with the requirements of Sections 43, 44, 75 and 83 read with Schedule VI to the 2000 Ordinance without any discrimination. The respondents shall not permit the plying of vehicles on roads, national highways and motorways with loads in excess of those prescribed in the said statute. Additionally , those violating the axle load limits are to be dealt with in accordance with sections 75 and 83 of the 2000 Ordinance. The respondents are also directe d to make all weigh stations on the national highways and motorways operational and also to establish such number of weighing stations as are considered necessary for the enforcement of the mandate pertaining to axle load limits under the 2000 Ordinance.
The letter dated 20.06.2019 issued by the Ministry of Communications, whereb y the axle load campaign was delayed, is held to have been issued without lawful authority and is declared to be without any legal effect. Any other order issued by the executive, how high so ever, which is in contradiction to the requirements of the said provisions of the 2000 Ordinance would be equally without lawful authority and of no legal ef fect.
27. Any laxity or inertia on the part of the executive or the statutory bodies (i.e., the N.H.A. and the N.H.&M.P .) in strictly implementing the requirements of Sections 43, 44, 75 and 83 read with Schedule VI to the 2000 Ordinance would not just be tantamount to dereliction of a statutory obligation but would be an actionable wrong. Henceforth the loss caused to the exchequer by damage to the motorways and national highw ays due to violation of the axle load limits prescribed by law ought to be made good from the personal coffers of all those public office holders and public functionaries who pass orders to exempt or delay the implementation of the axle load regime, prescribed by statute.
28. The instant writ petition is allowed in the above terms. There shall be no order as to costs
29. Before parting with this judgment, I must mark my appreciation for the invaluable assistance by the learned Amicus Curiae.