' This petition, under Article 199 of the Constitution (1973) by Abdul Majeed and 3 others seeks following reliefs:--- "It is, therefore, very humbly prayed that allowing the petition, the declaration and appropriate direction to respondents Nos.1 to 4 be issued to the effect that as the abovementioned said so- called Air-Conditioned Hino Coaches Services Stand adjacent to Government Transport Service (Previous) Bahawalpur is nauthorised/illegal because it is being operated by respondents Nos.5 to 9 without obtaining any permission/sancion/ licence from a competent Authority, respondent No,1, under Motor Vehicles Ordinance, 1965 and Motor Vehicle Rules, 1969, therefore, respondents Nos.1 to 4 are legally duty bound to exercise their authority and jurisdiction to close eliminate the said unauthorised/illegal so-called Air-Conditioned Hino Coaches Service Stand adjacent to Government Transport Service (previous) Bahawalpur. Respondents Nos.1 to 4 are also legally duty bound to implement the direction of this Horeble Court in Writ Petition No,1525 of 1996/BWP, dated 4-12-1996 in letter and spirit by ensuring that the abovementioned unauthorised/ illegal stand would be closed and will not be allowed to function for all practical purposes. Respondents Nos.1 and 2 should exercise their authority/jurisdiction and should ensure the implementation of his Order No,3097-3103, dated 7-12-1996.
' A direction to respondents Nos. 6 to 9 that they should resist from using the said disputed piece of land adjacent to Government Transport Service (Previous) Bahawalpur as Air-Conditioned Hino Coaches Service, Transport Service Stand and also resist from operating the unauthorised/illegal transport service from the said unauthorised/illegal stand.
' Any other relief which is just and is in favour of the petitioner may also be granted."
2. The material facts, leading to instant petition, are not disputed and are these (i) that Bahawalpur Municipal Corporation Bahawalpur/respondent No,5 operates 'C' Class stand for Air-Conditioned Hino Coaches at a place near General Bus Stand (ii) that the petitioners are owners of Air Conditioned Coaches which run from General Bus Stand to different destinations; (iii) that Hafiz Muhammad Nawaz, respondent NO.6, Muhammad Iqbal Shami respondent No,7 Khalid Mehmood respondent No,8 and Muhammad Riaz respondent No,9 are not owners of such vehicles and had obtained on lease Bay No,1, Bay No,2, Bay No,3, and Bay No,4 in the aforesaid Stand, established Booking Office, Bath Rooms, Wash Rooms and deny entry to petitioners' Coaches. This is, in short, factual background in this petition.
3, In compliance with the order of this Court, Commissioner/Chairman Regional Transport Authority and Municipal Corporation submitted parawise comments while respondents Nos.6, 7, 8 and 9 appeared through their learned counsel. From the comments, furnished by the Chairman Regional Transport, it amerges that the bus stand is being run by the Municipal Corporation in consonance with decision made in the meeting of a Committee comprising Secretary, R.T.A., Administrator, Municipal Corporation and Deputy Commissioner, Bahawalpur. This meeting was held on 1-8-1995 in compliance with the order of the High Court passed in W.P. No,1689 of 1993, W.P. No,682 of 1994 and W.P. No,551 of 1995. The aforesaid Committee took the following decision: "(i) All A.C. Coaches/Buses operating from the illegal stands in the city be shifted to the place earmarked by the Municipal Corporation, Bahawalpur near G.T. Stand and no Coach should be allowed service from illegal stands.
(ii) The vehicle with 15 to 25 seating capacity should operate service from Mini Wagon Stand and the remaining vehicles will operate service from the General Bus Stand. The Vehicles operate according to the routes issued to them by the concerned Authorities."
' Municipal Corporation, Bahawalpur too, adopted the same line of approach. Learned counsel for respondents Nos.6 to 9 stated that the aforesaid respondents had constructed waiting rooms, booking offices and wash rooms with the consent of Municipal Corporation; that all Air-conditioned Hino Coaches will be entitled to enter the bus stand and use aforesaid facilities; that Executive Magistrate, who is in charge of the stand will be well within his rights to control and see that every vehicle/Air-conditioned Coach is allowed to use the stand and abovementioned facilities indiscriminately. The Executive Magistrate who was also present stated that he will monitor the above undertaking.
4. Learned counsel for the petitioners, however, relies upon Rules 253 to 256 to contend that the disputed 'C' Class stand was neither approved by the Regional Transport Authority nor it satisfies the requirements of conditionalities prescribed in the above rules, that the aforesaid rules were/are mandatory in nature and so the establishment of said stand by the Municipal Corporation (without seeking sanction of R.T.A.) is without any lawful authority and of no legal effect and infraction of rules will vitiate the continuance of stand itself. Reliance was placed on M/s. Chohan Flying Coach Service Sahiwal v. Regional Transport Authority and another (1993 CLC 1853). The learned counsel, appearing on behalf of Municipal Corporation, however, strongly submitted that the Bus Stand had been set up by the Committee comprising of Secretary, R.T.A., Representatives of Municipal Corporation and District Magistrate, Bahawalpur, in line with the order of this Court; that the object of the stand was to provide better facilities to Air Conditioned Coaches which were running from Bahawalpur to different destinations in the country; that the petitioner had not come to this Court with clean hands and wanted to frustrate the order of this Court. Learned counsel for the respondents Nos.6 to 9 made a statement which has been noted above. Since all the parties have been represented and heard, I have decided to hear this petition as a Pacca case with the concurrence of all the parties.
5. The first and afore most point, that falls for consideration, is whether Rules 252, 253, 254, 255, 256 and 261 of the Motor Vehicles Rules, 1969 are mandatory in character and no 'C' Class Bus Stand can operate without the sanction of Regional Transport Authority? This point is not without difficulty.
No hard and fast rule can be laid down for determining as to whether any statute/rule is mandatory or directory. It is a well-established rule that when a statute or a rule provides consequences for disobedience/non-compliance of a statutory provision/rule, that statute or rule is mandatory in character. Reference be made to Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others (PLD 1971 SC 61). It was held therein: "It is well-settled that the neglect of the plain requirements of a statutory enactment, which prescribe how something is to he done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which, thus, arises for consideration is when an enactment is to be considered as absolute and when as merely directory?
' It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain actions shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may be considered as a directory provision. Nonetheless, it appears that in several reported English cases, it has been held that an enactment, prescribed the formalities which are to be observed for validation of an action, are not absolute, although expressed in negative or prohibitory language. In Mayor of London v. R.
(1848) 13 QB 30), it was stated that "the words negative and affirmative of a statute mean nothing.
The question is whether they are repugnant or not to that which before existed. That may be more easily shown when the statute is negative than when it is affirmative, but the question is the same.
In Liverpool Borrough Bank v. Turner (1861) 30 UCH 379), Lord Campbell observed as follows:--- "No universal rule can be laid down as to whether a mandatory enactment shall be construed directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of Justice to try to get at the real intention of the Legislature by carefully attending the whole scope of the statute to be construed."
' In Howard v. Bollingdon (1877) 2 (D 203), Lord Penzance after citing this dictum of Lord Campbell added as follows:--- "I believe as far as any rule is concerned, you cannot safely go further than that. In each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object to be secured by the Act and upon review of the case in that respect, decide whether an enactment is, what is called, imperative or only obligatory.
' One other principle which has been enunciated in this behalf is that as a general rule, the statute, which enable persons to take legal proceeding under certain specified circumstances, demand that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language. At page 226 of Craies on Statutory Laws, 6th Edition, this rule is stated, thus:-- 'That when a statute confers jurisdiction upon a Tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly applied'.
' Bearing these principles in mind, I have reached the conclusion that sub-clause (5) of section 20 of the Act is mandatory in character and places a limitation on the jurisdiction of the revising authority not to make any adverse order against a person without giving opportunity to show- cause against it. If such an order is made without fulfilment of this prerequisite, it would certainly lack jurisdiction."
' The aforesaid rule was reiterated in Niaz Muhammad Khan v. Mian Fazal Raqib (PLD 1974 SC 134).
There are two cases from Indian jurisdiction, which pertain to interpretation of rules. The first case is Haribundhu Satpathy v. Chandresekhar Surrendra Singh and others (AIR 1966 Orissa 12 (V 53 C 5).
In this case, the effect of Rule 24 of Orissa Gram Punchayat Rules, 1949 was examined. It was held that the aforesaid rule was directory in nature. Paras.7 and 8 of this report are relevant. Para.7 reads as under: "The question is. Is Rule 32 mandatory or merely directory? This is a point of interpretation of the Rule having regard to the real intention of the legislature. In this context certain undisputed principles have been laid down both by the Privy Council as also the Supreme Court which are summarised, thus. It is well-settled general rule that ' an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially'. It is sufficient if the plain object of the directory provision is carried out. An enactment in form mandatory might in substance be directory. The use of the word 'shall' does not conclude the matter. However, these and other rules are only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context. The practical bearing of the distinction between a provision which is mandatory and one which is directory is that while the former must be strictly observed in the case of the latter it is sufficient that it is substantially complied with. The tendency of the Courts towards technicality is to be deprecated; it is the substance that a Court must take procedure over mere form. Some rules are vital and go to the route of the matter; They cannot be broken, others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as a whole and provided no prejudice ensues, and when the legislature does not itself state which is which Judges must determine the matter and exercising a nice discrimination sort out one class from the other along broad based, common sense lines.
' Para.8 reads as under:--- ' Rule 32 enjoins the performance of a public duty by the District Magistrate to fix a date for holding a by-election to fill in the casual vacancy. In such cases where the prescription of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect or done good work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, yet not promote the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and Government of those on whom the duty is imposed are, in other words, as directory only. It does not affect the validity of the act done in disregard of them. There is ample authority in support of this view as discussed by Maxwell on Interpretation of Statutes (11th Edition 369) with reference to the provisions of particular English Statutes mentioned therein."
6. The second case is Narayan Krishnaji Marulkar and another v. State (AIR 1967 Bombay 213) (V 54 C 44). In this precedent, the nature of Rule 4 of Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 was examined. It was found that this rule was optional in nature. It would be useful to quote the relevant passages from this reported case which is as follows: "The question which we have to consider is whether this rule is mandatory or whether its provisions are only directory. The distinction between a mandatory and a directory enactment is that a mandatory enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially, see, Punjab Cooperative Bank Ltd. Amritsar v.
Commissioner of Income Tax, Lahore, 43 Born. LR 372: (AIR 1940 PC 230). As observed by Bose J. In Partap Singh v. Krishnagupta, 1955 (2) SCR 1029: (AIR 1956 SC 140) some rules are vital and go to the route of the matter, they cannot be broken, others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as a whole and provided no prejudice ensues, and when the legislature does not itself state which is which Judges must determine the matter and exercising a nice discrimination sort out one class from the other along broad based, common sense lines. In the present case, subsection (2) of section 129-A states that the medical practitioner "shall" collect and forward blood in the prescribed manner. The use of the word "shall" in this subsection and in Rule 4 undoubtedly lend support to the argument that the provisions of the rule should be strictly complied with. Section 66(2) as well as subsection (2) of section 129-A enable the prosecution to prove the extent of concentration of alcohol in the blood of an accused person otherwise than by the production only of the certificate of the Chemical Examiner under section 129-A. The primary object of Rule 4 is to ensure that the blood is collected in such a way that the test in regard to parentage of alcohol in it is not vitiated by anything done in the process of collection. The rule also provides for anti-coagulant and preservative being added so that the quantity of alcohol in the blood does not change on account of the delay in despatching it to the Chemical Examiner or on account of the delay in its being examined by the Chemical Examiner. It also lays down certain safeguard for the accused person, such as that the phial shall be labelled and cap sealed and that it should reach the Testing Officer within seven days from the date of its collection. Having regard to the purpose for which the rule has not been made, it seems to us that if the blood is collected and forwarded to the Comical Examiner in a manner which makes it possible to ascertain with accuracy the percentage of alcohol in the blood of the time of its collection, substantial compliance with the provisions of Rule 4 should be regarded as sufficient. In our opinion, the provisions of Rule 4 are directory and not mandatory. To hold otherwise may result in injustice in some cases for instance, no prejudice is caused to the accused when instead of no less than 5 cc a smaller quantity, 4-1/2 cc of his blood are collected.
An affidavit has been filed before us, in which the Assistant Chemical Analyser has stated that the Chemical Analyst will be able to give a correct analysis, if he is supplied with 2 cc of blood' and that a large quantity has been prescribed by the rule by way of abundant caution. Consequently, it will not be reasonable to hold that even such a minor breach of the rule should render the certificate of the Chemical Examiner inadmissible in evidence, in such case, therefore, the substance of the matter should be such that it is not likely to affect the test of the result of the analysis, it may be disregarded. On the other hand, if the provision of the rule, which is not complied with, is one which may affect the result of the test of which makes it doubtful whether the certificate shows correctly the percentage of alcohol in the blood of the accused person at the time when it was collected, the certificate must be rejected and should not be used as evidence of the facts stated therein. Each case must, therefore, be considered on its own facts and in each case it must be seen whether the breach of the rule is such as has or may have affected the result of the test or has otherwise caused prejudice to the accused."
' The aforesaid propositions of law were followed in by the Income Tax Tribunal in 1991 PTD (Trib.)
583.
7. Guided by the above rules, let us proceed to examine the nature of rules quoted above. Motor Vehicle Rules, 1969 were issued by Governor in exercise of his powers under sections 22, 43, 64, 69, 74, 96 and 120 of \Vest Pakistan Motor Vehicles Ordinance, 196:, and earlier rules in the field, i,e,, Punjab-Motor Vehicles Act, 1939 were repealed. The Motor Vehicles Ordinance, 1965 was enacted on 18th June, 1965 with an object to bring in field the uniform law pertaining to motor vehicles in the Province of West Pakistan and underlying purpose of this Statute was to regulate the Motor Vehicles and their running on roads. Its rapid survey will be helpful. It contains nine chapters, Chapter-I pertains to title and the extent of the. Act: It also contains the definitions clause. Chapter- II deals with the problems of licensing of drivers of motor vehicles. Chapter-III pertains to registration of motor vehicles. Chapter-IV is with regard to Control of Transport Vehicles. Chapter-V provides establishment of Road'I Transport Corporation. Chapter VI deals with the provisions of construction, equipment and maintenance of motor vehicles. Chapter VII relates to control of traffic. Chapter VIII incorporates offences, penalties and procedure for punishing its violators.
Chapter-IX is miscellaneous in nature. No doubt, the problems of providing halting stations, parking places and bus stand are very vital to flow to traffic. The afore quoted rules were made to regulate the aforesaid problems. Rule 253 postulates various types of Stands. Sub-rule (2) of this rule empowers the Regional Transport Authority, in consultation with the local authority, to allow setting up of Stands/permitting any place to be used as stand. It further says that without such order by Regional Transport Authority, no place shall be used as bus stand. Sub-rule (3) says that the sanctioned stand shall be notified by publication in one or more newspapers which Regional Transport Authority may consider proper. Rules 255 and 256 lay down criterions for location of stand and facilities which are to be provided to vehicles. It further says that a fee will be prescribed by the Regional Transport Authority which will be apportioned by owner of bus stand and R.T.A. So as to ensure better facilities to the transporters, vehicles and passengers. From the foregoing, it is, thus, clear that these rules are facilitative in character and were framed in order to implement the various provisions of West Pakistan Motor Vehicle Ordinance, 1965. These rules provide the various conditionalities for setting up of the stands and provisions for regulation of stand for motor vehicles and provisions of amenities to the passengers. Neither these rules nor their non-compliance will vitiate the exercise of the authority. No doubt, under these rules, no place can be used as bus stand without the consent of R.T.A., yet consequence of noncompliance of this provision is not provided in rules. For the afore stated reasons, I have no hesitation in coming to the conclusion that these rules are directory in nature and not mandatory in character. However, it must be noted over here that the bus stands are to be sanctioned by the Regional Transport Authority and have to be run in consonance with the conditionalities prescribed in rules and to be prescribed in sanction order.
These rules are meant to provide hygienic environmental condition in the stand. Notwithstanding their directory, character, these conditionalities cannot be brushed aside by the Regional Transport Authority. Their violation will tantamount to manifest inconvenience to public and hazard to the health of passengers, and will render bus stand unhealthy and contrary to requirements of traffic.
One more rule to be kept in mind laid down in Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236). It was held as follows: "It is no doubt true that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not render decision without jurisdiction. To amount to a nullity, an act must be non- existent in the eye of law; i,e, to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction. In the present cases, the Verification Order cannot be said to be without jurisdiction and a nullity, in this dense merely because of circulars of the Claims Commissioner, Pakistan, directing the claims officers to treat Claim for Zamindaris and tenancy interest in claim filed under Schedule V-A as claim under Schedule. V leaving out Jagiris and manufis. If the claim officers had misinterpreted these instructions or misapplied them and treated even Jagiris and muafis as claimed in respect of property under Schedule V, then they had no doubt decided wrongly but not without jurisdiction. I am, therefore, unable to agree that on this ground the verification Order could be treated as a nullity."
8. Applying the aforesaid rules to the facts and circumstances of petition in hand, it is quite clear that the bus stand in dispute was set up-by the Regional Transport Authority in compliance with the arrangements approved in the meeting of the Committee set up by the Regional Transport Authority on 1-8-1995; the Committee was so constituted to obey the order of High Court passed in Writ Petitions Nos.1698 of 1993, 862 of 1994 and 551 of 1995 on 8-3-1995. The space was provided by the Municipal Corporation, Bahawalpur in pursuance of the aforesaid decisions. Very clearly neither there was any mala fide on the part of the Regional Transport Authority nor Municipal Corporation; that the bus stand had been working since 1-8-1995. The Air-conditioned coaches had been coming to this stand and leaving for different destinations in country since the said date. In the context of aforesaid background, the representative of the Regional Transport Authority suggested that Authority was prepared to regularize bus stand in consonance with the afore-quoted rules after affording opportunity of hearing to all concerned sides. The learned counsel for respondents Nos.6 to 9 states that no hindrance will be created in the way of the vehicles owned by the petitioners in using the bus stand along with its all facilities.
9. From the above, it is, thus, clear that the bus stand is being run without any sanction by the Regional Transport Authority as entity and no order has been passed by the authority for the purpose of providing facilities/amenities within the framework of above quoted rules. This being the position, I have no doubt in my mind that though the stand is not illegal, yet is irregular. This is example of bona fide exercise of authority by the Regional Transport Authority but it is irregular.
10. For the aforesaid reasons, I allow this writ petition to the aforesaid extent and remit the entire matter to Regional Transport Authority for the purpose of regularizing this stand by passing conscious order of sanctioning from retrospective date providing necessary amenities and prescribed fee for use of the Adda in compliance of the afore noted rules. The parties have undertaken to appear before the Regional Transport Authority on 25-2-1999, and the authority shall accordingly decide and regularise their stand in the light of above observations.
' This petition, so, stands disposed of in the above terms.