CH. KHURSHID AHMAD, J.- The petitioner was proprietor of M/s. Shahzada Flying Coach Service Bahawalnagar. He made an application to the Regional Transport Authority, Bahwalpur for grant of permission to operate 'D' class Company stand for operating wagon services on Bahawalpur, Fort Abbas, Haroonabad, Chishtian, Multan, Faisalabad, Lahore, Sahiwal, Arfiwala and Haveli Lakhan subject to the conditions as mentioned therein and prescribed in Rule 263 of Motor Vehical Rules, 1969. The order granting permission was passed under sub-rule (2) of the Rule 253 of Motor Vehicle Rules, 1969 on 23.7.1991. The same was subsequently renewed by Regional Transport Authority. The petitioner applied for further renewal and the case was placed before the Regional Transport Authority in its meeting held on 15.1.1995 but the same was declined. The petitioner filed an appeal before the Punjab Provincial Transport Authority, Lahore against the decision of the R.T.A 15.1.1995.
The appeal was heard by respondent No. 1 and taking due notice of the principle of "audi alterm partem" the Chairman accepted the appeal by holding that the appellant was condemned unheard and impugned order before him thus amounted to denial of justice to the appellant. The order dated 15.11.1995 of respondent No. 2 was held to be bad in law and without jurisdiction.
2. Respondent No. 1, however, while accepting the the case of the petitioner to respondent No. 2 'for decision afresh after affording an opportunity of being heard to the present , petitioner and strictly in accordance with law, rules and procedure." The remand of the appeal by respondent No. 1 to respondent No. 2 was impugned in the present petition and direction was prayed in the name of respondent No. 2 for the renewal of the licence of the petitioner for 'D' class wagon stand situated in Bhawali Chowk, Bahawalnagar.
3. In the, written statement filed by respondent No. 2 it was stated:- "The site of the stand was situated on a very busy road on the turn of Haroonabad Bahawalngar Road which always created traffic hazard and blockade in the free flow of the traffic."
4. It was contended by the learned counsel for the petitioner that the R.T.A, had a patent mala fide against the petitioner and the same had been expressed by respondent No. 2 in its report (referred supra) and that the remand of respondent Not 2 of the case of the petitioner amounted to rejection of the ; appeal as there was no infringement of any terms and conditions of the permission granted earlier, it was further contended that the respondents had treated the petition with discrimination. In the same meeting respondent No. 2 had renewed the licence of Azmat Flying Coach who had its Wagon Stand in the same Bahawali Chowk of Bahawalnagar. Respondent No. 2 had thus created a monopoly of M/s. Azmat Flying Coach and deprived the petitioner of its fundamental right guaranteed under Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973 and as he respondent had not been treated in accordance with law and discriminated as against M/s. Azmat Flying Coach the fundamental rights guaranteed under Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 was also infringed. The learned counsel placed reliance on Nazir Ahmad v. Town Committee Sehiwal (PLD 1976 Lahore 1438), Muhammad Azeem v. M.C. Municipal Committee Montgomery (PLD 1967 Lahore 218), Pak Naulakha Goods Transport Co. v. District Magistrate, Lahore and others, (1988 MLD 261) and Malik Niaz Muhammad v. Provincial Transport Authority (1969 S.C.M.R. 790) on the point where the creation of monopolies was disapproved. He also referred to Riaz Ahmad v. R.T A. Multan (1992 M.L.D 1892) having the similar facts as of the present case.
5. I have given my anxious consideration the facts of the case and the rules involved. 'D' class stand was sanctioned by the Regional Transport Authority after satisfying itself about the fulfilment of conditions as contained in Rule 256 of the Rules supra.
6. Rule 266 of the Motor Vehicle Rules, 1969 provided for cancellation/revocation of any order made by the R.T.A, by itself permitting the establishment of a stand but sub-rule (2) thereof reads as under:- "266(2). Before revoking any order under the preceding sub-rule the Regional Transport Authority shall give the person authorised to administer the stand an opportunity of being heard, and shall record his reason in writing."
In the present case no notice was issued to the petitioner before the cancellation of the permission and, therefore, it was rightly held by respondent No. 1 that the order was illegal and without lawful authority.
7. The mala fide of respondent No.- 2 is patent from the contents of paragraph 2 of the report submitted by its Secretary R.T.A, to whom the case was remanded. It was suggestive that the authority was acting/intending to at against the petitioner and/or any remand was a mere formality and thus the writ petition was maintainable as against the remand order. Reliance may be placed on Aman Ullah Khan v. The Province of N.W.F.P. (1994 MLD 2329).
8. Respondent No. 2 in its reply had not taken plea of infringement of any terms and conditions or permission for granting 'D' class wagon stand to the petitioner. It was rather stated that the stand of the petitioner was on a very busy road which always created traffic hazards and blockade in the free flow of traffic. This plea of respondent No. 2 was again discriminatory. In the writ petition the petitioner had specifically stated that stand of M/s. Azmat Flying Coach was also situated on the same road but R.T.A, withheld its comments on the said allegation in its report and thus the petitioner and M/s. Azmat Flying Coach are proved to have not been treated equality although the petitioner was entitled to equal treatment under Article 25 of the Constitution of 1973.
9. The petitioner had guaranteed right to enter upon any lawful profession or occupation and to conduct any lawful trade or business subject to qualifications and the limitations thereof by a licencing system and also in the interest of free competition therein. In the circumstances of the present case I am of the view that the fundamental rights of the petitioner as guaranteed under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 was also infringed by respondent No. 2 and he was not dealt with in accordance with law as guaranteed by Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973.
10. Respondent No. 2 having not alleged any infringement of terms and conditions as referred supra they were obliged under the law to renew the licence and could not revoke the same. Rule 266 of the Motor Vehicles Rules, 1969 also provided protection as against unilateral revocation of permission. None of the conditions being present on the basis of which respondent; No. 2 withdrew/revoked its permission granted to the petitioner to operate wagon stand in Bahawali Chowk Bahawalnagar, the order dated 7.3.1995 passed by respondent No. 1 to the extent of remand and order of 15.1.1995 passed by respondent No. (2) are declared to be without lawful jurisdiction and without lawful authority, discriminatory and amounting to create monopoly of another competitor.
10. The writ petition is resultantly accepted 'and respondent No. 2 is directed to renew the permission of running 'D' Class Wagon Stand earlier allowed to the petitioner on 23.7.1990 bn their fulfilling all the terms and conditions prescribed under the law.
There shall be no order as to costs.