This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the order dated 30th July, 1988, whereby the District Magistrate, Gujranwala, respondent No1, while purporting to act under rule 248 of the Provincial Motor Vehicles Rules, 1969 granted permission to respondent No.2 to use land comprised in Khasra No. 205 situate in Hafizabad as parking point for wagons plying between Hafizabad to Lahore.
2. The validity of this order has been challenged by the petitioner on various grounds, inter alia, that the exercise of jurisdiction is mala fide, it violates the provisions of section 80 of the Motor Vehicles Ordinance, 1965; is contrary to the direction issued by the Govt. In its circular letter dated 26-3-1986 and the permission has been granted without consulting the Superintendent of Police and the Local Authority concerned.
3.It is not necessary to deal with all the contentions raised on behalf of the petitioner, for the impugned order is liable to be struck down on the ground that the permission has been granted without consulting the Local Authority concerned. Rule 248 of the Provincial Motor Vehicles Rules, 1969 authorises all District Magistrates to exercise powers under Section 80 of the Ordinance for determining parking places for motor vehicles. Section 80 provides that the power A may be exercised after consultation with the Superintendent of Police and the Local Authority having jurisdiction in the area concerned. Local Authority has been defined in Section 2 (35) of the West Pakistan General Clauses Act, 1956 as under:- "local authority" shall mean a municipal corporation, municipal committee, district board, body of Port Trustees of Commissioners, or other authority legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund."
1n the present case, it was specifically averred in the petition that the local authority was never consulted. This averment was .Not denied in the report and parawise comments submitted by the District Magistrate. There is thus a manifest violation of the provisions regarding consultation with the local authority. It has been stated in the comments that the permission was granted in the larger interest after due deliberation in consultation with the local M.P.and,M.NAs and Senior Superintendent of Police. It needs no gainsaying that consultation with the M.P.As. And M.NAs.
Cannot partake the character of consultation with the local authority.
4. The next question which arises is the effect of failure to consult the local authority. Both section 80 as also rule 248 provide for exercise of powers after consultation with the local authority. In law, .If a Statute provides for exercise of power after consultation, the provisiosn is to be construed as mandatory and the power granted can only be exercised if the condition prescribed therein is satisfied in Judical Review of Administrative Action by SA. De Smith (4th Edition) at page 144, it has been stated that "a provision requiring consultation with named bodies before a statutory power is exercised is also likely to be construed as mandatory. Similarly, in Halsbur3r's Laws of England (4th Edition, Vol.I, para. 25) it has been stated that "among requirements likely to he held to be mandatory are provisions as to the composition of the repository of the rower and obligations to consult. This statement of law finds support from the decisions in Agricultural, Horticultural and Forestry Industry Training Board v. Aylesbury Mushrooms Ltd. ((1972) 1 All E.R. 280, May v. Beatti ((1927) 2 K.B. 353) and Rollo v. Minister of Town & Country Planning ((1948) 1 All ER 13).
5. In the present case, it is obvious that a pre-condition which is mandatory in nature has not been complied with by the District Magistrate while exercising the powers conferred upon him by rule 248 and as such the order passed by him is wholly without any lawful authority. It is also to be noticed that the delegation to the District Magistrate by------rule 248 was circumscribed by a condition imposed in the rule itself and as such the condition should have been satisfied. It is well settled that if law authorises do in of a thing in a particular manner should be done in that way or not at all.
The reason for consultation with local authority is not far to see. Under the local laws the local area is to be administered by the local council which is inter alia, concerned with public health, safety, town planning and traffic control. The grant of permission to use a particular place for parking motor vehicles or as a halting point may come in conflict with any of the Schemes, of the local authority or may otherwise be considered by it to be detrimental to the public health, safety or traffic control. It is thus essential that an opportunity should be allowed to the local council concerned to put its views before the District F Magistrate. Such a requirement which is for public benefit cannot, but be held to be mandatory. The impugned order is, in these circumstances, clearly not sustainable. <p.m></p.m>