' On the basis of issuance of Letter No,TPB-TD/LTS/97 sent by Secretary (Transport), Government of the Punjab, Transport Department, Lahore on 23-6-1997 to the Commissioner, Multan Division, Multan on the subject of "Establishment of N.G.O. On Transport on the Lines of Lahore Transport System (LTS)"; the Commissioner, Multan Division, Mutlan has aken up the steps to provide model transport system with the assistance of private transporters in Multan and in this regard the steps are being taken through preparation of blue print and the Scheme is just in the offing. In this regard non-Governmental Organization under the name and style of Multan Transport System (MTS) has been created and the Constitution has been framed. The news was published in Daily 'Khabrain' dated 12-7-1997 and Daily 'Nawa-i-Waqt dated 14-7-1997 about the planning regarding execution of City Transport Service for Multan.
2. The Toyota Hiace Wagons City Service Owners Association (Registered), Sitara Motors Chowk Kumharawala, Multan through its General Secretary, Ch. Abdul Haque has filed this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the proposed relief to accept the same and to declare the initiation of the City Transport Service under the supervision of Commissioner, Multan Division, Multan (respondent No,1) as well as the other Government Functionaries i,e, Administrator, Municipal Corporation, Multan; Secretary, Road Transport Authority, Multan,; Superintendent of Police, Traffic, Multan; Traffic Magistrate, Multan and the Deputy Commissioner, Multan (respondents Nos.2 to 6) being purely a non-Governmental Organization as ultra vires, arbitrary and capricious in nature. They prayed that the respondents may be restrained from forcing them to join the City Transport Service and from taking any coercive measures against them in that respect. According to the writ petitioner any non- Governmental Organization (hereinafter called as NGD) cannot have the patronship of a Government functionary/official, that the initiative in the matter can be taken in the private sector in order to promote socio-economic state of affairs and that there was no authority bestowed upon the respondents to sponsor the N.G.O. They maintained that the establishment and the working of the Multan Transport Service would be against law as the penalties and fines to be levied have been determined in discrimination to that narrated in the Motor Vehicles Ordinance, 1965. It was particularly pointed out that the Scheme was against the provisions of Articles 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973.
3. In the comments the respondents took up the stand that for the public convenience the Mutlan Transport Service is being constituted regarding which blue prints have been prepared and that due to the non-existence of the structure of the body the writ petition is simply premature. They maintained that the Divisional Commissioner being the head of the Division has been proposed as the President of the Society while the Deputy Commissioner, Multan, as the Chief Executive so that the matters are settled in a proper. Manner. They contended that non-Governmental Organizations can also be run by Government Body comprising Government Officers and that in this respect about the Multan Public School the experience has proved to be successful. They also maintained that the Multan Transport Service can be introduced as there is no restriction in the Motor Vehicles Ordinance on the subject.
4. At this stage it is proper to express that Insaf Toyota Hiace City Wagon Owners Association, Mutlan through its General Secretary Aftab Awan filed an application under Order I, Rule 10, C.P.C.
For impleading the applicant as a party to the writ petition on the ground of being interested in the matter. The same assertion was raised by the learned counsel for the applicant during the arguments but the same need not be given any weight on the ground that the Multan Transport Service to be established by the respondents had not invited the applications for inclusion of the wagons of the applicant. The dispute is between the writ petitioner and the respondents and the aforesaid applicant who has filed Civil Miscellaneous No,2303 of 1997 has no locus standi in the matter whose Constitutional right is not being infringed. It is pertinent to mention that the applicants are running the wagons and nobody has stopped them. As such they are not the necessary party and the application filed in the matter is dismissed thereof.
5. With respect to the merits of the writ petition, the learned counsel for the petitioner argued that the petitioner runs wagons in the name of Toyota Hiace Wagons City Service Owners Association whose rights shall be infringed through Multan Transport Service regarding the running of which the Constitution has been framed. Relying on section 2(1) and the complete Schedule framed under said section 2(f) of the Voluntary Social Welfare Agencies (Registration and Control)
Ordinance (Ordinance XLVI of 1961) he argued that Voluntary Social Welfare Agency means an Organization, Association or undertaking established by persons of their own free-will for the purpose of rendering welfare services in any one or more of the fields mentioned in the Schedule and depending for its resources on public subscription, donation or Government aid. He maintained that according to the Schedule prepared under the aforesaid section 2(f) of the Ordinance, the establishment of Mutlan Transport Service cannot be constituted as Non- Governmental Organization. He added that the respondents cannot form an N.G.O. And that the very basis of the Organization stands shattered having fallen on the ground. According to him the constitution of the Mutlan Transport Service is discriminatory as the fines mentioned therein are different from those incorporated in the Motor Vehicles Ordinance. He continued that the transport service having the protection of the Divisional and District Administration comprising the Commissioner of the Division, Magistrate of the District, Secretary, Road Transport Authority and the Superior Police Officers shall be looking after the interest of the Mutlan Transport Service at the cost of the petitioners who are not desirous to enter their wagons in the fleet to be prepared by the respondents and thus there would be no equality before law and equal protection of law as provided under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. He also referred to Article 18 of the Constitution of Islamic Republic of Pakistan, 1973. According to it the petitioners have the right to enter upon any lawful trade or business which shall be hampered through the introduction of the Multan Transport Service as with the passage of time the buses being run or to be run by the petitioners and others would be facing shortage of the passengers. According to him Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 provides the remedy for the infringement of fundamental and legal rights of a petitioner. On the contrary the learned Additional Advocate-General laid the emphasis that no right of the petitioner is being violated by the respondents about the public convenience which is the demand of time. The Multan Transport Service is being constituted by the respondents through the establishment of the Non- Governmental Organization of which the fleet shall comprise the wagons owned by the private owners and not by the Government. He added that the writ petition is premature as only the Blue Print has been prepared and the Scheme is in the offing for the convenience of the public. He maintained that the Non-Governmental Organization could be formulated with the help of the Government and everything is being done in good faith keeping in view the general interest of the public at large of District Mutlan.
6. Before proceeding further, I deem it proper, for the sake of convenience, to reproduce as under: "Clause (1) of section 2 of Voluntary Social Welfare Agencies (Registration and Control) Ordinance (No,XLVI of 1961): 'Voluntary Social Welfare Agency' means an organization, association or undertaking established by persons of their own free-will for the purpose of rendering welfare services in any one or more of the fields mentioned in the Schedule and depending for its resources on public subscriptions donations or Government aid."
7. The following schedule prepared under subsection 2(0 of the aforesaid Act is also reproduced: "THE SCHEDULE [(See section 2(0)]
(i) Child welfare.
(ii) Youth welfare.
(iii) Women's welfare.
(iv) Welfare of the physically and mentally handicapped.
(v) Family planning.
(vi) Recreational programmes intended to keep people away from anti-social activities.
(vii) Social education that is, education of adults aimed at developing sense of civic responsibility.
(viii) Welfare and rehabilitation of released prisoners.
(ix) Welfare of juvenile delinquents.
(x) Welfare of the socially handicapped.
(xi) Welfare of the beggars and destitutes.
(xii) Welfare and rehabilitation of patients.
(xiii) Welfare of the aged and infirm.
(xiv) Training in social work.
(xv) Coordination of social welfare agencies."
8. Articles 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 are reproduced as follows for the proper appreciation of the dispute:
18. Freedom of trade, business or profession.--Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful trade or business: ' Provided that nothing in this Article shall prevent--
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government or by a Corporation controlled by any such Government, or any trade, business, industry or service, to the exclusion, complete or partial, of other persons.
25. Equality of citizens.--(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
9. I am in full agreement with the learned counsel for the petitioner in his submissions. I would express that provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 confer very wide powers on this High Court for the endorsement of fundamental and legal rights. It would be proper to express that Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 provides remedy for the infringement of the fundamental and legal rights of a person. However, the condition precedent to the granting of any relief under the said Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 depends on existence of fundamental and legal rights of a person and of infringement of such right. Further the right which is the foundation of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is a personal and individual right which may be statutory right recognised by law. A person can be said to be aggrieved when he was denied a legal right by some one who had legal duty to perform relating to that right. In the instant matter, a perusal of section 2(f) and the Schedule incorporated under the same in the aforesaid Ordinance, 1961 has made out that the Government cannot constitute a non-Governmental Organization.
None of the items mentioned in the aforesaid Schedule cover Constitution and the establishment of any non-Governmental Organization for running the Multan Transport Service. The disputed purpose being devoid of legal cover cannot be processed with and acted upon by the respondents. The crux of the matter is that any organization, association or undertaking established by the persons of their own free-will for the purpose of rendering welfare services in any one or more of the fields mentioned in the Schedule can constitute any non-Governmental Organization. Further, such Organization etc. Has to depend for its resources on public subscriptions, donations or Government aid. In the instant matter, there is no provision for the public subscription or donation or Government aid. Further, the respondents being the Government functionaries are debarred from constituting the non-Governmental Organization. It is a matter relating to the constitution of Multan Transport Service by the respondents who are the Executive Officers. Legally, they cannot work as a trade organization or like any organization or association, the Constitution of which has been provided in section 2(f) of the aforesaid Ordinance, 1961 and the respondents cannot depend for their resources on public subscription, donation or Government aid etc. The establishment and constitution of the Multan Transport Service shall definitely violate the fundamental rights of the petitioner as envisaged under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 as well as provided by Article 25 of the Constitution, 1973. The mere lip service towards the petitioner that they will not face any type of inconvenience in their business/trade of plying of wagons or that the same shall not be interfered with need not be given the weight as muss fuss emanates in the society about the transgression of the authority by the Executive Officers towards the Transporters. It is a matter of common knowledge that discrimination is exercised towards different vehicles of different registered or unregistered Associations of the transporters. Not only that their business/trade is interfered with without any justification, the inequitable legal treatment is provided to them from Association to association.
Rather some of them cannot pursue the business in a salubrious manner. This is being done at a time when there is no Organization of the disputed category in the field. When there is no Government Transport Service in the field the difficulty is being faced by the Transporters. In case of its establishment as in the instant matter, the apprehension of the petitioner would stand enhanced. The cumulative effect of the aforesaid discussion has made me to hold that the petitioners have good case and the writ petition tiled by them has the legal merits.
10. The objection raised by the learned counsel for the respondents that the writ petition is premature need not be given the weight as it has rightly been pointed out by the learned counsel for the petitioners that it is no necessary that in every case, after the injury stands incepted, the Constitutional jurisdiction of the Court can be invoked. To exemplify the efficacious remedy of filing a civil suit getting restrained the adverse party from raising the construction of a wall violating the legal rights of the plaintiff can be availed and if the matter has the merit not only that the final relief can be granted the temporary relief can also be issued. It is not necessary that after the start of the plying of the buses in the Multan Transport Service the writ petition can be instituted. The respondents who have no locus standi and have no right to constitute the Multan Transport Service can be stopped from proceedings further and from executing the Blue Print which has been prepared when the scheme is said to be just in the offing. The establishment of the non- Governmental Organization in the impugned manner by the Executive Authorities/Government Officers cannot be allowed being violative of the aforesaid Statutory Law.
11. In view of what has been said above, I hold that this writ petition merits to be accepted. I, therefore, hold that the establishment of the Multan Transport Service being a non-Governmental Organization for the establishment of which the steps are being taken by the Executive Officers/respondents is ultra vires, arbitrary, capricious and ineffective which cannot be further processed with by the respondents. Consequently, the writ petition is accepted in the aforesaid terms with costs.