1. ' SAJJAD ALI SHAH, J.--This Constitutional petition calls in question Order, dated 20-9-1984 passed by Commissioner/Chairman, R.T.A. Karachi, whereby he has varied route "Z-18" in the route permits of three petitioners and it is prayed that variation in question is without lawful authority and of no legal effect.
2. ' Briefly stated the relevant facts giving rise to this petition are that three petitioners namely Lal Baz Khan Afridi, Lal Muhammad Khan and Ghulam Nabi were issued permits Nos. 359/84, 457/84 and 385/84, dated 20-2-1984, 4-3-1984 and 20-2-1984 respectively for a period of three years for the specified route No. "Z-18" by Secretary, Regional Transport Authority impugned in the petition as respondent No.1 for plying Mini Buses as particular stage carriages as contemplated under rule 65
(1) (i) Form P.St. P. of Motor Vehicle Rules, 1969. This route No. "Z-18" was created in the year 1980 to run from Orangi Town 114 (Rehmat Chowk) to Mohajir Camp 74 via Qasba, Banaras Colony, Pathan Colony,Habib Bank, Manghopir Road, Garden, Lawrence Road, Juca Market, Lea Market and Shershah. By an order, dated 15th May 1984 passed by Commissioner/Chairman, R.T.A. Karachi impleaded in this petition as respondent No.2 several variations were made in route No."Z- 18".Constitutional Petitions were filed in the High Court on 25-7-1984 impugning order of variations of route as having been passed without lawful authority so the grounds that it was so passed without giving any hearing to the petitioners. During the pendency of the petition for admission on 30-8-1984 an order was passed by the Court on the indication of learned Additional Advocate- General for respondents that impugned order had been stayed by respondents on account of the fact that respondent No.2 was still seized of the matter as some applications or representations have been filed and further assurance was given that the petitioners also would be given hearing.
3. On such assurance Mr. S.A.Wadood, counsel for petitioners requested for an adjournment to be enabled to put in appearance before respondent No.2 on behalf of petitioners to explain the case of the petitioners. On 20-9-1984 respondent No.2 after giving hearing to the petitioners passed the order retaining one of the two variations in Route No. "Z-18". This new order also has been challenged by way of amended petition on the ground that it has been passed in violation of provision of Rule 94 of Motor Vehicle Rules, 1969 (herinafter to be referred as the said Rules). The petition in amended form is admitted for regular hearing vide Order, dated 25-10-1984.
4. ' According to the petitioners both impugned orders relating to variation of route permit passed by respondent No.2 are violative of rule 94 of the said Rules for the reason that such variation can be made by R.T.A. If an application is made to it by the permit holder and not at the request of other persons. It is further stated that according to first proviso to rule 94 no variation is to be made in the route during the currency of the permit. Additionally it is stated on behalf of the petitioners that interference in this case has been made for variation of route of the petitioners at the instance of persons who are not concerned with and have nothing to do with route No. "Z-18".
5. ' Respondents have filed comments and have stated therein that Mini Bus Route "Z-18" was created in 1980 and in February 1984, some operators applied for grant of permits and 18 permits were issued. Out of 18 permits four permits were surrendered which were cancelled and 14 permits are still in operation. One Muhammad Karim alongwith other operations of route "2" which was created way back in 1973 complained that grant of permits on route "2-18" had adversely affected operations on route "Z" as there was some over lapping between the two routes, which was likely to create law and order situation. It is further stated in the comments that Muhammad Karim proposed variations in route "2-18" upon which S.P. Traffic, Karachi and Director, Traffic Engineering Bureau, K.D.A. Karachi were consulted and finally first impugned order of variation in route "Z-18" was passed on 15-5-1984. Mr. Asadullah Khan, Secretary, R.T.A. has filed counter-affidavit before the Court on behalf of respondent No.1 in which it is admitted that route "Z-18" was changed to meet the objections of permit holders of route "Z". It is further admitted that the first impugned order of variation was passed without hearing the petitioners.
6. ' Legal position urged on behalf of the petitioners is that the impugned orders of variation of route permits are violative of rule 94 of the said Rules. No doubt rule 94 of the said Rules does allow variation of permits but the same can be done only on application filed in writing by the holder of a permit, which means the holder of permit, whose route is interfered with for the purpose of variation. This would not include any permit holder and if the intention was to do so then the Rule would have clearly provided that this could be done on an application made in writing by any holder of a permit or "a" holder of a permit instead of "the". In any case further first proviso to the said Rule makes the intention abundantly clear by providing specifically that stage carriage entered in a permit for a route shall not be allowed a change for any other route during the currency of the permit. From this it appears beyond dispute that once a route is set and entered in the permit and stage carriage is also entered in a permit then that stage carriage has to ply on that route without any change in the route till the term of the permit expires. In the route permits described above Registration Number of vehicles are given, terms for the currency of permits are also specified. Further routes are specifically described with all the stops. On this basis it is argued on behalf of the petitioners that the petitioners not only have vested rights in the route permits but also in the routes which are specified in detail in the permits themselves and no variation can be introduced in the said route Rule till the expiry of the term of permit unless asked by the permit holders themselves as contemplated by rule 94. In the instant case issuance of permits in complete accord with requirements of rule 94 has given validly acquired vested rights to the petitioners which cannot be taken away with interference subsequently unless it is done so strictly as permitted by the law. It is held in the case of Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 that the authority that has the power to make an order has also the power to undo it.
7. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights. Supreme Court of Pakistan has held in the case of Collector of Central Excise and Land Customs and 3 others v. Azizud Din Industries Ltd., Chittagong PLD 1970 SC 439 that it is a settled rule that an executive authority cannot in exercise of the rule-making power or the power to amend, vary or rescind an earlier order, take away the rights vested in the citizens by law, Reference can be made to the case of Miss Anis Kubra and others v. Province of Sind and others PLD 1978 Kar. 556 with relevant portion at page 559 in paragraph 10 which is reproduced as hereunder:- "It is true that as applicant, each of the petitioners had no right to migration, it being a matter in the discretion of the Government. But after the application for migration was granted and the petitioner concerned was directed to join the Sind Medical College, Karachi, he acquired a vested right to be admitted to that College, after observing the required formalities under rules in force, and also a right to receive Medical Education therein, subject to the rules of the prospectus governing his discipline and conduct and subject also to his being liable to be migrated to another medical college in accordance with the migration rules. The rules contained in the prospectus have been held to have the force of law and rights conferred thereunder would be protected from unlawful interference, as such as vested rights, benefits, or advantages conferred by a statute. I am, therefore, unable to accept the submission of the learned Advocate-General that in the circumstances no rights had been created in favour of the petitioners by allowing their migrations to the Sind Medical College, Karachi."
8. ' It was argued on behalf of respondents by learned Additional Advocate-General that the petitioners may have vested rights in the permits but they cannot be said to have vested rights in the routes. Permits have not been withdrawn or cancelled by .the respondents but only a slight variation is made in the route which is in the interest of all the permit holders collectively and such step has also been approved by the other concerned authorities. We do not feel inclined to accept the contention raised on behalf of respondents. There are different remedies available in the Motor Vehicle Ordinance, 1965 and rules framed thereunder mentioned above for which the proper procedures are also prescribed. For each such remedy, proper procedure prescribed therefore has to be followed in letter and spirit.
9. ' For the facts and reasons stated above particularly in the light of case-law cited above, we hold that Orders impugned in this petition are ultra vires of rule 94 of the said Rules as such are hereby struck down as having been passed without lawful authority. In the result the petition is allowed.