' RANA BHAGWAN DAS, J.---The petitioner transporter holds a route permit for plying Mini Bus No, JE-5143 of Route No,X-20. He is aggrieved by the refusal of respondents to issue a new permit for Mazda Bus bearing Engine No,SO-1068 with chasis No,301191 or transfer of the route permit of his existing Mini-Bus to his newly purchased Mini Bus. By the present petition he seeks a direction against the respondents to issue new route permit for his newly purchased Mazda bus or to allow replacement of his old Mini-Bus JE-5143 on the same route. He further seeks a declaration that the order dated 10-12-1990 passed by the Minister, Transport Department, Government of Sindh to the effect that issuance of fresh route permits to Mini-Buses be banned and refusal by respondent No,3 to issue new route permit is unlawful, arbitrary, mala fide and violative of Articles 18 and 25 read with Article 4 of the Constitution.
2. It is the case of the petitioner that he is an old transporter at Karachi since 1972 and his buses are plying on various routes. He applied for replacement of his old Mini-Bus plying on route X-20 with a new one when he was informed that respondent No,1 had totally stopped the issuance of fresh route permits in respect of Mini-Buses for all the routes in Karachi after the incident of Bushra Zaidi in 1985. He has further pleaded that after 1985 replacement system of route permits was introduced by the Provincial Government instead of issuance of new route permits which was allowed subject to fulfilment of certain requirements including payment of fees or charges. He has contended that respondent No,3 refused to issue a new route permit for replacement of the old bus by a new bus in respect of valid route permit in view of so-called order made by the Minister, Transport Department, Government of Sindh. It has been urged that refusal to issue permit is discriminatory and unconstitutional as it violates Article 18 of the Constitution because an arbitrary distinction has been made between large bodies. Buses and Mini-Buses which is not warranted by law. He has complained of discrimination on the part of respondents by not giving him equal treatment in issuance of route permit and permitting the replacement inasmuch as they have issued new route permits as well as allowed replacement. He has cited the instance of issuance of new route permits to Messers Mehran Coach Mini Bus Service in 1991 plying from Gulshan-e- Hadeed Pakistan Steel Mills to Dockyard. Besides various Rent-a-Car dealers at Karachi were allowed replacement at the sweet-will of the respondents.
3. Parawise comments were sent for from the respondents but only respondentNo,3 has submitted the same in which factual position is not denied but it is asserted that the ban was imposed on issuance of new route permits for plying new buses in the City after Bushra Zaidi incident. It is admitted that after the imposition of ban, three route permits were issued on 17-7-1986 and one permit on 13-1-1988 by the then Chairman, Regional Transport Authority, Karachi. It was further stated that replacement of Mini-Buses was first stopped with effect from 9-12-1986 vide order passed by the then Commissioner/Chairman, Regional Transport Authority, Karachi. However in the meeting of Regional Transport Authority held on 30-5-1989 it was decided that the ban imposed on replacement of old Mini-Bus should be withdrawn. Consequently replacement of Mini-Buses was continued up to 10-12-1990 when it was banned under the orders of the Minister for Transport.
Government of Sindh while denying that Regional Transport Authority has introduced Prime Minister's Scheme or issued new route permits it is stated that Prime Minister's Incentive S.Cheme was introduced by Federal Government and issuance of route permits, registration and fitness one window scheme was introduced. Provincial Transport Authority Sindh used to issue route permits to various kinds of vehicles all over the Province including Karachi.
4. We have heard learned counsel for the petitioner as well as Additional Advocate-General on behalf of the respondents.
5. Mr. Khalid M. Ishaque, learned counsel fomhe petitioner has raised the following contentions:---
(i) That in the Scheme of Motor Vehicles Ordinance "Stage Carriage" is defined in section 2(37) to mean a Motor Vehicle carrying or adopted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers etc..
(ii) That section 46 of the Ordinance authorises the Provincial Government to constitute a Provincial Transport Authority and Regional Transport Authorities to exercise and discharge the powers and functions under subsection (6). This provision of the Ordinance authorises the Provincial Transport Authority to coordinate and regulate the activities and policies of the Regional Transport Authority but it does not empower the Minister to formulate the policy with regard to the issuance or stoppage of route permits.
(iii) That Article 18 of the Constitution guarantees, freedom of trade, business and profession to every citizen of Pakistan and that the right guaranteed by the Constitution cannot be taken away by any law.
6. On the other hand, learned Additional Advocate-General Appearing for the respondents, contended that by virtue of subsection (3) of section 45 of the Ordinance, Provincial Government is empowered to direct any Regional Transport Authority to restrict the issuance of fresh permits or not to grant any permit in the interest of healthy competition amongst the transporters. This right of the Provincial Government, according to the learned Additional Advocate-General, is absolute and unfettered.
7. Before dealing with the contentions raised by the learned counsel for the parties, it would be appropriate to refer to the scheme of the Motor Vehicles Ordinance, 1965 (hereinafter referred as the Ordinance, 1965 which regulates the law relating to motor vehicles in the Province. Chapter I of the ordinance contains preamble, short title and extent of application of the Ordinance and defines certain words used in the Ordinance. Chapter II of the Ordinance deals with licensing of drivers and motor vehicles. Chapter III relates to registration of motor vehicles. Chapter IV pertains to control of transport vehicles and is relevant for the purposes of this petition. Chapter V deals with the establishment of Road Transport Corporation in the Province. Chapter VI deals with construction, equipment and maintenance of motor vehicles. Chapter. VII deals with the control of traffic.
Chapter VIII relates to offences, penalties and procedure.. Chapter IX deals with miscellaneous matters, i,e, publication and commencement of rules, appointment of Motor Vehicles Officers and general provisions regarding appeals and schedules attached to the Ordinance. In Chapters II to VII, the Provincial Government has been empowered to make rules for the purposes of each Chapter. Under section 69 falling in Chapter IV of the Ordinance, the Provincial Government is empowered to make rules for the purpose of this Chapter which, among other matters, relates to the period of appointment, the terms of appointment and the conduct of business by Regional and Provincial Transport Authorities, the delegation of powers by them to their respective Chairman or Members and the report to be furnished by them. .8. In exercise of the powers conferred by sections 22, 43, 68, 69, 70, 74,96 and 120 of the Ordinance, Governor of West Pakistan made and promulgated Motor Vehicles Rules, 1969, for the Provinces forming part and parcel of Islamic Republic of Pakistan.
9. While section 46 of the Ordinance provides that Government shall by Notification in the official Gazette constitute:--
(i) a Provincial Transport Authority to exercise and discharge throughout the Province the powers and functions specified in subsection (6); and
(ii) Regional Transport Authorities to exercise and discharge throughout such areas as may be specified in the Notification in respect of each Regional Transport Authority the powers and functions by or under this Chapter on such authorities.
10. Rule 54 of the Rules deals with the terms of appointment of members of the Provincial Transport Authority and Regional Transport Authorities; Rule 55 deals with the meeting of the Provincial Transport Authority; Rule 56 relates to the meetings of the Regional Transport Authorities; and Rule 57 relates to the conduct of business of the Transport Authorities. Rule 57 empowers a Provincial or a Regional Transport Authority to make bye-laws to regulate the conduct of business to be conducted under the direction of the Chairman of the Authority. Bye-laws so made by a Provincial Transport Authority shall be subject to the approval of Government and the bye-laws made by a Regional Transport AUthority shall be subject to the approval of the Provincial Transport Authority.
Sub-rule (6) lays down that the Provincial or the Regional Transport Authority, as the case may be, may summon any applicant for a permit to appear before it and may decline to grant the permit until the applicant has so appeared either in person or by an agent authorised by him in writing and until the applicant has furnished such information as reasonable be required by the Authority in connection with the application.
11. Rule 57-A to classification of rules for stage carriage permits provides that the Provincial Transport Authority shall demarcate routes into "A", "B" and "C" categories for stage carriage permits on the basis of density of traffic and condition of the road. Sub-rule (1) of Rule 57-B lays down that no permit shall be granted in respect of:--
(i) "A" category route if the stage carriage is more than four ye3is old; and
(ii) "B" category route if the stage carriage is more than six years old.
' Sub-rule (2) lays down that a permit granted for a particular category under sub-rule (1) shall cease to be valid for that category if the stage carriage exceeds the age limit prescribed therefore.
Rule 58 envisages that when a Regional Transport Authority has, in the exercise of its powers under the Ordinance, imposed limit upon the number of permits of contract carriage which may be granted for a specified route or a specified area and has already granted such number of permits of that class, the Authority may decline to consider further applications for such permits in respect of any such route or area. Rule 62 as amended in the Province of Sindh relates to delegation of powers to Chairman, Secretary, Additional Secretary and Assistant Secretary of the Provincial or Regional Transport Authority, by general or special resolution recorded in its proceedings and subject to the restrictions, limitations and conditions herein specified.
12. Perusal of the aforesaid provisions of law on the subject would indicate that powers under the Ordinance and Rules in the matter of issuance of route permits have been conferred on a Provincial Transport Authority or Regional Transport Authorities set-up in the Province of Sindh, whereas a Minister in the Provincial Government enjoys no such authority to override or supersede the powers and authority of a Regional Transport Authority, which has been created under the Ordinance itself. It further seems .That the Authority is required to exercise its powers and regulate the conduct of transport in the Province in a reasonably just and fair manner rather than to act or be influenced by extraneous considerations.
13. In the present case it is admitted position that even after the imposition of ban on issuance of route permits after Bushra Zaidi incident in 1985. RTA Karachi had issued three route permits on 17- 7-1986 and one permit on 13-8-1988 in relaxation of the policy laid down by the Government. It is evident from the comments that replacement of mini-buses was discontinued in the first instance with effect from 9-12-1986 by the Chairman, Regional Transport Authority, Karachi, which was revived by virtue of a decision taken in the meeting of the Regional Transport Authority held on 30- 5-1989. Replacement of Mini-buses continued up to 10-12-1990 when it was banned under the order of the Minister for Transport and not by the Regional Transport Authority itself by way of resolution adopted in the meeting of the Authority. It further appears that on introduction of Prime Minister's Scheme, Provincial Transport Authority has issued a large number of route permits to all kinds of vehicles including coaches, which are no better than mini-buses throughout the Province of Sindh including Karachi. The respondents have failed to bring on,record any resolution passed by the Regional Transport Authority imposing a ban on issuance of route permits or replacement of buses except a letter comprising three lines written by the Private Secretary of the Minister to the Secretary Transport Department, Government of Sindh, to the effect that "Minister desires that replacement of buses/mini-buses should be stopped forthwith till further orders". It may be observed here that the respondents refused to issue route permit to the petitioner or replacement of his old bus by a new one acting under the alleged directive of the Minister contained in this letter which does not lay down any criteria or a policy decision by the Government itself. In any case, it does not assign any reason for prohibiting replacement of mini-buses for an indefinite period.
14. No doubt, subsection (3) of section 45 of the Ordinance empowers the Government to direct the Provincial Transport Authority or a Regional Transport Authority not to grant or issue any permit (if already granted but not issued) or to restrict grant of fresh permits to a specified number on a route or routes or part of a route on which Road Transport Corporation is already operating motor transport or intends to do so. It may be pointed out that no policy decision of the Government restricting the issuance of route permits in exercise of this power has been placed on record or shown to exist. In any case no such decision has been shown to have been ever published in the official Gazette by the learned Additional Advocate-General, who frankly conceded to this position:
15. Dealing with the extent of power and authority of administrative or executive officers in the case of Tariq Transporter Company, Lahore v. Sargodha-Bhera Bus Service, Sargodha and another PLD 1958 SC (Pak.) 437), it was held on page 462 of the report that where an administrative or executive officer acts under a law, the High Court will control the action by an appropriate order, if he--
(a) goes out of the law, i,e, exercise a jurisdiction not vested in him by law;
(b) wrongly denies or omits to exercise a jurisdiction, and
(c) where the law under which he acts prescribes the manner in which he is to .Act, materially departs from that law.
' But the overriding requirement in all the three cases is that the excess or denial of jurisdiction or the irregularity in the prescribed procedure should have injuriously affected some justifiable right of a party.
16. In Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447), after referring to the judgments in the cases of Muhammad Hussain Munir PLD 1974 SC 139 and Zulfiqar Khan Awan (1974 SCM R 530), the Honourable Supreme Court of Pakistan laid down as under:--- "It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it ' rightly or wrongly' because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of the jurisdiction."
17. There is no gainsaying that every citizen is entitled to be dealt with in accordance with law as enshrined in Article 4 of the Constitution. In the present case, it is obvious that the petitioner was not dealt with in accordance with law inasmuch as the respondents had in various cases issued route permits in favour of other individuals after the imposition of alleged ban and admittedly 15 route permits were issued in favour of Mehran Coach Service plying from Gulshan-eHadid Pakistan Steel to Dockyard, whereas the petitioner was denied a route permit for replacement of his bus without assigning any reason. By refusing to issue a route permit or allowing replacement of bus to the petitioner, the respondents wrongly denied and omitted to exercise jurisdiction in accordance with law and thereby acted discriminately, wrongly and unlawfully. Denial of petitioner's claim, guaranteed by Article 18 of the Constitution with regard to freedom of trade, business or profession, definitely and injuriously affected a valuable right conferred upon him by the Constitution. It is true that the right guaranteed under Article 18 of the Constitution is subject to reasonable restrictions and regulations, as may be prescribed by law, and in the present case the conduct of transport is regulated by the provisions of the Ordinance and the Rules framed, thereunder, but the act of the respondents is neither covered nor supported by law.
18. A reference may also be made to the case of Jibendra Kishore Acharia Choudhry and 58 others v. Province of East Pakistan and another (PLD 1957 SC (Pak.) 9). At page 41 of the report, their Lordships held that the very concept of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law and it is not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right fundamental but that it may 'be taken away by the law.
19. On the other hand, learned Additional Advocate-General relied on M/s. Abdullah & Co. And others v. Government of Sindh and 2 others (1992 M LD 949) and Independent Newspapers Corporation (Pvt.) Limited and another v. Chairman, Fourth Wage Board and Implementation Tribunal and others (1993 SCM R 1533).
20. In the first case, a Division Bench of this Court held that while interpreting a provision containing a proviso, the Courts should lean towards an interpretation which harmonises the provision with the main provision so as not to nullify it but restrict its application. This decision rather goes against the respondents for subsection (3) of section 45 of the Ordinance cannot be read in isolation from subsection (2) which lays down that notwithstanding anything (contained) in subsection (1), Government may by notification under this subsection cancel generally or in relation to a specified area any permit or class of permit granted under this Chapter in respect of transport vehicles in order to enable the Corporation constituted under section 70 of the Ordinance to use its transport vehicles on the routes thus rendered vacant: ' Provided that the provisions of section 22 of the West Pakistan General Clauses Act, 1956 as to previous . Publication shall apply to a Notification under this subsection, and for the purposes of the said section, a Notification under this subsection shall be deemed to be a rule made under an Act.
21. Without disputing the power of Government to control road transport in relation to a specified area to enable Karachi Transport Corporation to use its transport vehicles on specified routes, there is no Notification issued by the Government restricting the issuance of route permits on the route applied for the petitioners.
22. In the Supreme Court case, it was held that where express a statutory power is conferred on a public functionary, it should not be pushed too far, for such conferment, implies a restraint in operating that power, so as to exercise it justly and reasonably. In the words of Scarman L.J., "excessive use of lawful power is itself unlawful". Further, there is a presumption that the Legislature does not transgress its jurisdiction and invade the fundamental rights given by the Constitution.
This rule is to be kept in view also in constructing and enforcing the law.
23. Adverting to the contention raised on behalf of the petitioner that the law does not make any distinction between a large bodied bus and a mini-bus because the Ordinance recognises only a "stage carriage" which has been defined to mean a bus carrying more than six persons as passengers for hire or reward. There is considerable force in the submission of the learned counsel.
No doubt it is the case of the respondents that after Bushra Zaidi incident, issuance of route permits in respect of mini-buses was banned in May, 1985 with a view to bring on road large size buses, as no restriction was imposed on issuance of route permits in respect of large bodied buses, it is obvious that this distinction was made without being supported by the provisions of the Ordinance and there is no convincing reason behind this decision. Case of the petitioner is also distinguishable in the sense that he held a valid route permit and, alternatively, he had prayed for transfer of his route permit to a new bus purchased by him, which would not be covered by the so- called ban imposed by respondent No,
1. In our view, since the Ordinance, 1965 does not envisage two categories of stage carriage, denial by the respondents in the instant case was arbitrary, discriminatory, unreasonable and without lawful authority.
24. Since the respondents failed to act within the ambit of their authority, we are left with no option but to allow this petition as prayed. In the circumstances of the case, there shall be no order as to costs.