ASIM HAFEEZ, J. This and connected constitutional petitio n bearing W.P. No. 49076/2021 are heard together but decided separately . Instant petition questions vires and legality of amendment in the Punjab Motor Vehicles Rules 1969 (Rules, 1969) through adding Rules 197-A, 197-B and 197-C. And through W.P. No. 49076/2021 amendments introduced through Notification No. SO(P-I)/2-34/2016(M/C)P-1 dated 1 September 2020 were assailed.
2. Petitioner statedly is engaged in the business of manufacturing / assembling of Three-Wheeler Auto Vehicles, i.e., Motorcycle Rickshaw and Cargo Loader, under license from Pakistan Standards and Quality Control Authority (PSQCA) - License for the use of the Pakistan Standard Mark. Primary grievance of the petitioner is regarding the implementation / enforcement of the Rules 197-A, 197-B and 197-C (impugned rules), requiring license for manufacturing or assembling of engine or chassis of motor cab rickshaw / motor cycle rickshaw. Primary ground of challenge is that impugned rules were promulgated without re-publication, which violates section 119 of Punjab Motor Vehicle Ordinance, 1965 ("Ordinance 1965") and section 22 of West Pakistan General Clauses Act, 1956 ('Act, 1956'). Impugned rules were framed in exercise of powers under section 74, read with section 119 of the Ordinance, 1965.
3. Notices were issued to Advocate General Punjab, as required in terms of Order XXVII-A Rule 1 of the Code of Civil Procedure, 1908 and reply was filed.
4. Learned counsel for the petitioner submits that, in terms of section 119 of the Ordinance, 1965, power to frame rules was subjected to the condition of previous publication of the rules, which condition was not adhered to before enforcing the impugned rules. Submits that the department, while adhering to the requirements of section 22 of Act, 1956, published draft rules through Notification No. SO(TR-I)/2-10/2000 dated 05.06.2002 for calling objections, wherein date for hearing of objections was indicated as 24.06.2002 but impugned rules were put into practice without re-publicationst of the rules in the official gazette, after the publication of the draft rules. And mere publication of the draft rules was erroneously treated as compliance of mandatory requirement of section 119 of Ordinance, 1965 and section 22 of Act, 1956.
5. When confronted, learned Assistant Advocate General, assisted by the Officer of the department, conceded that inadvertently only the draft rules were published, however, no objection was raised regarding the proposed draft rules, whereafter no fresh publication or re-publication in official Gazette was carried out and previous publication was treated as sufficient compliance and rules were enforced and applied. Adds that impugned rules are enforced, since then, for the purposes of issuance of licenses and regulating the manufacturing of licensed products. Further submits that petitioner has applied for the grant of the license, which is not yet issued, as the conditions prescribed are not met.
6. The precise question is the effect of non-publication or re-publication of the rules in the Official Gazette, despite previous publication of draft rules, and whether the previous publication constitute substantial compliance of the requirements of section 119 of Ordinance, 1965 and section 22 of Act, 1956 - when no objections were raised qua the legality, reasonability and competency of the impugned rules, upon publication of draft rules. It is expedient to encapsulate relevant provisions of law, before dilating upon the controversy. Sections 74 and 119 of the Ordinance, 1965 and section 22 of Act, 1956 are reproduced for convenience, "74. Power to make rules. ---(1) Government may make rules regulating the construction equipment and maintenance of motor vehicles and trailers. (2) Without prejudice to the generality of the foregoing power Government may make rules governing any of the following matters either, generally in respect of motor vehicles or trailers or motor vehicles or trailers of a particular class or in particular circumstances namely:- ................." ................." ................."
119. Publication of and commencement of rules. -
(1) Every power to make rules given by this Ordinance is subject to the condition of the rules being made after previous publication.
(2) All rules made under this Ordinance shall be published in the official Gazette, and shall, unless some later date is appointed, come into force on the date of such publication."
22. Provisions applicable to making of rules or bye-laws after previous publication. Where, by any West Pakistan Act, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye- laws being made after previous publication, then the following provisions shall apply, namely:-
(1) the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby;
(2) the publication shall be made in such manner as that authority deems to be sufficient, or if the condition to previous publication so requires, in such manner as the Central Government or the Provincial Government prescribes;
(3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration;
(4) the authority having power to make the rules or bye-laws and, where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or byelaws from any person with respect to the draft before the date so specified;
(5) the publication in the official Gazette of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made." [Emphasis supplied]
7. The context is that the validity and enforceability of the impugned rules are questioned after two decades of successful enforcement and implementation - whereunder numerous licenses were issued and are regularly renewed on annul basis. Few undisputed facts need sharper focus, which are that draft rules were published in the Official Gazette through Notification No. SO(TR-I)/2-10/2000 dated 05.06.2002 for calling objections; no objections were raised against the impugned rules; and since then rules were put into practice. It is expedient to reproduce the impugned rules, to comprehend their character and scope, which read as follows, "197-A. Grant of manufacturing / assembling license of motor cab rickshaw / motor cycle rickshaw. - (1)The Provincial Transport Authority may grant a license for manufacturing or assembling of engine or chassis of the motor cab rickshaw / motor cycle rickshaw to the registered Firm or a Company having a sufficient space for the purpose under a specified registered trademark.
(2) The license referred in the preceding sub-rule shall be subject to the conditions / standard specifications prescribed by the Provincial Transport Authority.
(3) The Motor Vehicles Examiner shall be authorized to check and to issue a certificate regarding confirmation of standards specified by the Provincial Transport Authority.
(4) The grant of license for the assembling or manufacturing of engine or chassis of a motor cab rickshaw / motor cycle rickshaw may remain valid for one year subject to deposit of fee of Rs.200,000.
(5) The renewal fee of the above referred license for one year shall be Rs.15,000.
197-B. Cancellation of the license.- (1) The Provincial Transport Authority may at any time revoke any license issued by it permitting the manufacturing or assembling of engine or chassis of a motor cab rickshaw / motor cycle rickshaw if in its opinion any of the specifications / standards have been contravened or the factory has not been successfully managed or its continuance is no longer in the public interest.
(2) Before revoking any license under the preceding sub-rule the Provincial Transport Authority shall give the licensee an opportunity of being heard and shall record its reasons in writing.
(3) If the above-referred license is not revoked under sub-rule (1) it shall remain in force for one year or such lesser period as may be mentioned in the license and may be renewed from time to time by the Provincial Transport Authority for a further period of not more than one year.
197-C. Appellate Authority (1) Any person aggrieved by an order of the Provincial Transport Authority issuing the license or revoking or modifying it, may, within thirty days of the receipt of the order appeal to 9 the Appellate Authority, as prescribed in rule 96-A whose decision thereon shall be final.
(2) The Appellate Authority, before passing an order under sub-rule (1) shall give the appellant or any other person affected by the order, opportunity of being heard".
8. Impugned rules envisage the requirement of seeking license; making manufacturing or assembling subject to the specifications prescribed by the Provincial Transport Authority. Impugned rules indicate that authorization was extended to the Motor Vehicles Examiner for issuance of certificates regarding confirmation of standards specified; rules prescribed tenure of the licenses and quantum of fees payable; provides for provisioning of powers and conditions for the cancellation of licenses and establishment of appellate forum. In brief, rules established a licensing regime for the manufacturing and assembling of motor cab rickshaw / motorcycle rickshaw. It is evident that persons likely to be covered under or affected by the impugned rules are prospective manufacturers and assemblers of the product, who are required to seek license before undertaking licensing activity. The element of surprise regarding the enforceability of the impugned rules is conspicuous by its absence. Impugned rules do not suggest imposition of any fiscal obligation or any condition prejudicial to the public - it is to be kept in mind that no objections were raised upon publication of the draft rules. It is not the case of the petitioner that same was not aware of the impugned rules - which rules were further amended through Notification No. SO(P-I)/2- 34/2016(M/C)P-1 dated 1st September 2020, which amendment is impugned through separate petition. It is pertinent to mention that amendment carried out in the impugned rules through Notification No. SO(P-I)/2-34/2016(M/C)P 1 dated 1st September 2020 fulfilled the condition of publication of draft rules for soliciting objections and thereafter amended rules were again published in the official gazette - where draft rules and re-published rules are not similar but amendments were made in the draft rules. It appears that fresh publication or re-publication was missed inadvertently and without any element of malafide. This Court, in these set of facts and circumstances, is called upon to determine the fate of the impugned rules.
9. Two options are available, either to set-aside the rules or to save them rules to avoid spilling chaos and confusion.
Later course is more plausible and rational. Compliance of condition of previous publication of rules under section 119 of Ordinance, 1965 is not disputed, and only objection is that section 22 of Act, 1956 was not followed is strict sense - there was no fresh publication or re-publication of the rules. The question is whether condition of subsequent publication, prescribed under section 22 of Act, 1956 is condonable, in the facts of this case. The moot question is what prejudice has been caused to the petitioner, if impugned rules were not re-published - when no objections were raised to the draft rules, which were duly published and no licensee, to date, has objected to their enforceability. No specific injury, prejudice or harm is alleged by the petitioner, except raising objection to the conditionalities prescribed for regulating the licensing regime. No case of any alleged discrimination, specific to the petitioner, is made out. The dispute is not regarding the publication of Motor Vehicle Rules 1969, but only to the extent of amends made through impugned rules. As far as knowledge of the petitioner is concerned, same is bound to get knowledge of the rules once license is sought for carrying out specific licensing activity. Persons affected by the impugned rules cannot claim absence of knowledge as licenses were issued under said rules. The case of "Commissioner of Income Tax and others Vs. Messrs Media Network and others" (2006 PTD 2502) contained observations in following terms, "The purpose of publication and the legal effect of non-publication in the Gazette Notification in the Official Gazette has been examined by the superior Courts in a number of cases. In Jalal Din v. Natha Ram and another (AIR 1922 Lahore 474), a learned Division Bench of the High Court observed that a notification was a method implied for communicating orders, rules, etc. to the general public."
10. The controversy at hand is examined in the light of judicial pronouncements. Learned counsel has relied upon the ratio of decisions in the following cases, "Nazir Ahmad Vs. King Emperor" (AIR 1936 Privy Council 253), "Assistant Collector Customs and others Vs. Messrs Khyber Electric Lamps and 3 others" (2001 SCMR 838), "Khalid Saeed Vs. Shamim Rizvan and others" (2003 SCMR 1505), "Raja Hamayun Sarfraz Khan and others Vs. Noor Muhammad" (2007 SCMR 307), "Manzur-ul-Haq Vs. Controlling Authority, Local Councils, Montgomery and others" (PLD 1963 Supreme Court 652), "Muhammad Siddique Vs. The Market Committee, Tandlianwala" (1983 SCMR 785), "Saghir Ahmed through Legal Heirs Vs. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others" (PLD 2004 Supreme Court 261), "Bahadur Khan and others Vs. Federation of Pakistan through Secretary M/o Finance, Islamabad and others" (2017 SCMR 2066). Above-quoted decisions are examined, which may constitute authorities in the context of the facts relevant to each case, but ratio therein is not attracted to the facts of the case, except the ratio settled in the cases of "Muhammad Siddique Vs. The Market Committee, Tandlianwala", (supra), "Saghir Ahmed through Legal Heirs' (supra), "Bahadur Khan and others (supra), which pronouncements are attracted and referred to support the reasoning in the instant case.
11. In the case of "Pakistan through Secretary, Ministry of Defence, and others Vs. Late Ch. Muhammad Ahsan through Legal Heirs and others" (1991 SCMR 2180), the question relates to the notification being acted upon for last 50 years without any trace of publication in the official gazette, relevant portion of the judgment is reproduced hereunder, "Although this rule may not be applicable to all situations where publication in the Gazette is necessary but in the facts and circumstances of this case we would have certainly applied the rule laid down, in the case of Muhammad Siddique. If a need would have arisen it would have advanced the cause of justice; namely, that factual acquisition of land in this case not having been denied and the same having been acted upon for nearly 50 years and that there is an air field in the land for such a long time, we would not have annulled all that on the ground of technicality namely that although the notice notification had been signed and issued to, all concerned, which had not been gazette. In other words the purpose of the publication in the ordinary sense was practically served in this case almost contemporaneously when the acquisition took place. In fact it was more substantial publication in so far as the owners were concerned than if it would have been official Gazette. This is so, vis--vis, thee practical side of the matter." [Emphasis supplied]
12. The effect of failure to publish relevant notification regarding acquisition of land for housing scheme - challenged by the land owners on the ground of non-publication in the official gazette - was discussed in the case of "Saghir Ahmed through Legal Heirs Vs. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others" (PLD 2004 Supreme Court 261), relevant portion whereof is reproduced hereunder for convenience, "10. Even otherwise, the provisions of a statute for the publication or a notification in official Gazette are generally regarded by the Courts as directory and where their strict non-compliance does not provide any consequences. The legal certainty also requires that ordinarily a statutory instrument should not be treated as invalid because of a failure on the part of public functionaries to publish it in the official Gazette. There may be many things done on the basis of such an instrument. It would seem unfortunate were these things held to be invalid if it were at some stage discovered that there had been a failure by a public authority to go meticulously by the manner and mode of publication of an instrument or notification in the Official Gazette. In the case of Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423) this Court took the view that even if Karachi Building and Town Planning Regulations, 1979 were not published in the official Gazette under section 21-A(3) of the Sindh Buildings Control Ordinance, 1979, they could be construed and acted upon as regulations for the purpose of the said Ordinance. In Pakistan through Secretary, Ministry of Defence and others v.
Late Ch. Muhammad Ahsan (1991 SCMR 2180), the factual acquisition of land had not been denied and same had been acted upon for nearly 50 years and there was an airfield in the land for such a long time. The notice/notification although had been signed and issued to all concerned but had not been gazetted. In other words, the purpose of the publication in the ordinary sense was practically served almost contemporaneously when the acquisition took place and in fact it was more substantial publication insofar as the owners were concerned than if it would have been in the official Gazette. It was further observed that mere fact that publication in the Gazette was delayed, would not invalidate the notification. A somewhat similar view was taken in Muhammad Siddique v. Market Committee, Tandlianwala (1983 SCMR 785). In the case of Manzur-ul-Haq v. Controlling Authority, Local Councils, Montgomery and others (PLD 1963 SC 652) it was held, by reference to the provisions of Article 26 of the Basic Democracies Order, 1959, and section 17 of the Municipal Administration Ordinance, 1960, that mere provision in a statute for notifying name of holder of office in Gazette was not a condition precedent to the holding of the office. In Chief Commissioner, Karachi v. Jamil Ahmed and another PLD 1961 SC 145 the Court held that the provision in section 280(1) of the City of Karachi Municipal Act, (1933) relating to general elections being notified in official Gazette was directory and not mandatory and a substantial compliance with that would be enough. In Regina v. Sheer Metalcraft Ltd. and another (1954 1 QB 586), Lord Streatfeild, J., took the view that "a statutory instrument, made by a Minister or other competent authority was valid and effective as soon as it was made, notwithstanding that the provisions of the Statutory Instruments Act, 1946, and the regulations, mode thereunder relating to the printing and issuing of statutory instruments had not been complied with".
11. However, no hard and fast rule of universal application can be laid down on the legal effect of non- publication of a notification in the official Gazette. In certain cases, keeping in view the nature and object of a particular statute and to carry out the legislative intent, the provisions for the publication of a notification in the official Gazette can be treated to be mandatory in nature where rights or liabilities of other persons are involved. See the cases of Muhammad Suleman (supra). The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82), Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab (PLD 1977 SC 639), Mahandra Lal Jaini v. State of Uttar Pradesh (AIR 1963 SC 1019) and Narinderjit Singh v. State of Uttar Pradesh (AIR 1973 SC 552)." [Emphasis supplied]
13. No question of any prejudice caused to the rights and liabilities of the persons is involved in this case. Impugned rules, if re-published accordingly would continue to regulate the licensing regime, which are being enforced still, without fresh publication. Ratio in the case of Saghir Ahmad through Legal Heirs (supra) was followed in the case of "Bahadur Khan and others Vs. Federation of Pakistan through Secretary M/o Finance, Islamabad and others" (2017 SCMR 2066), wherein effect of failure of the publication of the notification was considered and decided, observing that 'We, agreeing with the dictum reproduced above, reaffirm that failure to have the notification published in the official gazette would not shear it of its statutory status. And benefit of the notification relating to pension and retirement benefits was extended despite non-publication of the said notification.
14. In the absence of any prejudice, financial loss or infringement of legal right, mere inadvertent mistake on the part of the department does not constitute sufficient ground to declare the Notification No. SO(TR-I)/2 10/2000 dated 05.06.2002 void and ineffective and consequently declaring all actions taken, licenses issued and renewed, solely because impugned rules were not re-published after draft rules being published earlier. Allowance of instant constitutional petition would in fact serve and perpetuate injustice and when purpose of the petitioner is to avoid compliance of licensing regime. No prejudice has been evidently caused, except that the petitioner is averse to adhere to the terms and conditions prescribed.
In these circumstances, the challenge thrown to the impugned rules is repelled. Issuance of Notification SO(TR-I)/2- 10/2000 dated 05.06.2002 in the official gazette is treated as sufficient compliance of the law, which shall be deemed effective from the date of publication of draft rules in the official gazette. It is clarified that declaration is only to the extent of this case. The Government in future shall adhere to the requirements of previous publication accordingly, as prescribed in law. Other grievances raised are not determinable by this Court in the exercise of constitutional jurisdiction, which otherwise entails determination of factual issues - regarding the specifications and standards prescribed for the manufacturing / assembling of the products and requirement of certification. Petitioner may raise said issues before the appropriate authority.
15. In view of above, this petition is devoid of merits and same is, hereby, dismissed.