This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the order passed by the District Magistrate, Gujranwala, respondent No.1, on 5th July, 1989, whereby he permitted respondents Nos.3 and 4 to use as a parking place for wagons on the land comprising Khasra No. 205, while purporting to act under rule 248 of the Motor Vehicles Rules, 1969.
2. According to the case of the petitioner, he is running a B-Class General Bus Stand situate at a place nearby the Land in question which has been shown in green colour in the plan (Annex. `A') attached to this petition. It is alleged that earlier one Muhammad Aslam had applied for permission to use the disputed land as a Wagon stand but this permission was refused by the Regional Transport Authority. He, however, managed to obtain an order from respondent No.1 on 30th July, 1988 allowing him to use the land as a parking point for plying Wagons between Hafizabad and Lahore, which was assailed by the petitioner by filing W.P. No.4793/88 which at the time of filing of this petition was pending in this Court but has been accepted by a separate judgment of even date. According to the petitioner, another application was submitted by respondents Nos.3 and 4 for the sanction of parking point on the same land to respondent No.1 who proceeded to withdraw his previous order dated 30th July, 1988 in favour of Muhammad Aslam on 3rd July, 1989 and, thereafter sanctioned the parking point in favour of the respondents Nos.3 and 4 on 5-7-1989. This order has been assailed by the petitioner in this petition on various grounds.
3. The first contention raised by the learned counsel for the petitioner was that the District Magistrate has no jurisdiction to allow wagons run by private individuals to be parked at a particular place. According to the learned counsel, section 80 of the Motor Vehicles Ordinance, 1965 empowers the Government to determine places on which motor vehicles may either stand indefinitely or for a specified period of time and also the places on which 'public service vehicles' may stop for a longer time than is necessary for taking up and setting down passengers. It was argued that section 80 contemplates two different kinds of vehicles viz. `motor vehicles' and `public service vehicles' and the power granted to the District Magistrate under rule 248 is confined to determine the parking places for `motor vehicles' and not for `public service vehicles'. On these premises, it was submitted that the permission granted to respondents Nos.3 and 4 for parking their wagons, which were public service vehicles, was in excess of jurisdiction vesting in the District Magistrate under rule 248.
4. This contention of the learned counsel has no force. Both `motor vehicle' and `public service vehicle' have been defined in the Motor Vehicles Ordinance, 1905. According to section 2 (23) "motor vehicle" means "any mechanically propelled vehicle adapted for use upon road whether the power of propulsion is transmitted thereto from an external or internal source, and includes a chassis to which a body has not been attached and a trailer but does not include a vehicle running upon fixed rails or used solely upon the premises of the owner." Similarly the folloiwng definition of "public service vehicle" appears in Section 2 (31):- "Any Motor Vehicle used or adapted to be used for the carriage or passengers for hire or reward and includes a motor cab, contract carriage, and stage carriage.'
From a comparison of the two definitions there can be no doubt that motor vehicle is an expression of larger connotation than public service vehicle. While motor vehicle is any mechanically propelled vehicle, public service vehicle is that kind of motor vehicle which is used for carriage of passengers. Thus under the Ordinance every public service vehicle is a motor vehicle though of specified type. As rule 248 empowers the District Magistrate to fix parking places for 1A motor vehicles, power can be exercised by him in relation to all kinds of motor vehicles including public service vehicles. In this view of the matter this contention of the learned counsel is without any force.
The next contention of the learned counsel for the petitioner is, however, well founded. According to Section 80 of the Motor Vehicles Ordinance, 1965 the requisite permission can only be granted after consultation with the local authority having jurisdiction. In W.P. No. 4793/88, it has already been held that the provision as regards consultation is mandatory and violation thereof would render the action to be void. In the present case, permission was granted after consulting the Assistant Commissioner and the police but there appears to be no consultation with the local authority. In this view of the matter the impugned order is not sustainable.
6. It is also to be noticed that in the application (Annexure `D') filed by respondents Nos. 3 and 4 on 2-5-1989, permission to use the land in question as a parking place was sought on the ground that they had obtained on lease this land from its owners Zafarullah Tarar and others. According to the report of respondent No.1 it was in pursuance of this application and the averments contained therein that the permission was allowed to respondents Nos. 3 and 4. Similarly in the written statement filed by respondent No.3, it has been stated that they being the lessees of the land in dispute from its owners under a lease-deed executed between them (Annex. `A' to the written statement) are entitled to use it as a parking point. However, by means of order dated 10-2-1988 passed by the Additional Deputy Commissioner (G) with the powers of notified Officer it was determined that the land in question did not stand transferred to Zafarullah Tarar and others but vested in the Government and was to be used as a public passage. The validity of this order w.--- challenged by Zafarullah Tarar etc. The lessors of respondents Nos.3 and 4 by fling W.P. No.1212 of 1988 which has since been dismissed. In these circumstances, respondents Nos.3 and 4 have no authority to use the land vesting in the Government which is reserved for public passage for parking their wagons. It may be stated that the Regional Transport Authority had already cancelled the halting point sanctioned in favour of Muhammad Aslam on the same ground. In this view of the matter also, the impugned order is not sustainable.
For the foregoing reasons, this Constitutional Petition is accepted and the impugned order is declared to have been passed without any lawful authority and of no legal effect. There shall be no order as to costs.