MIAN SHAKIRULLAH JAN, J.---Haji Mushtaq Ahmad Khan, M. Rafique and Muhammad Bashir, the petitioners, are claiming to be the lawful owners of buses/vehicles bearing No,CA-5053, CA-2783.
And CA 1190 respectively. The Motor Registering Authority, Charsadda cancelled the registration certificates of all the three vehicles alongwith others -under section 35 of the Motor Vehicles Ordinance, 1965 (hereinafter referred to as Ordinance) on different dates, that of CA 5033 on 27-5- 1995 on the ground that the documents of the vehicle being forged and fictitious one, that of C.A.
2783 on 3-8-1995 on the ground that the documents of the vehicle found bogus and fictitious and that of Vehicle No,CA-1190 on 1-8-1995 on the ground that the original file found missing.
2. The Inspector of Excise and Taxation Department, Haripur, during road checking in-between 22- 2-1999 and 3-3-1999, seized and impounded the buses for not having valid registration certificates purportedly under the N.-W.F.P. (Seizure and Disposal of Motor Vehicles) Rules, 1999 (hereinafter may be- referred to as Rules). It is on 4-3-1999 that the petitioners received notices from the office of the Excise and Taxation Officer, Haripur, for the confiscation of the vehicles under Rule 8 of the Rules in case of their failure to produce valid registration certificates in respect of the vehicles. Only Haji Mushtaq Ahmed petitioner submitted reply to the said notice claiming to be the lawful owner of the vehicle and was paying all the taxes including registration fee etc. Regularly uptodate.
However, the Motor Registering Authority, Haripur, after hearing the petitioners,- did not feel satisfy with the reply/explanation and passed the impugned order of confiscation of the vehicles on 3-4- 1999 for lack of having valid registration certificates.
3. The petitioners having felt aggrieved of the said confiscation order have challenged the same through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
4. The respondents were directed to file their comments which they did accordingly twice, once by filing their comments on 20-5-1999 and secondly on 3-6-1999. In the comments filed earlier they did not deny the ownership of the petitioners. However, in the comments filed subsequently the ownership was also denied. In the earlier comments the competency of the writ petition was also challenged on the ground that the petitioners have not exhausted the remedy available under the rules while in the comments latter, under a similar objection, the reason for non-competency of the writ was stated to be non-filing of appeal under section 36 of the Ordinance. However, the stand taken on the factual side of the case by the respondents was that the petitioners were having no valid registration certificates under the Ordinance and the vehicles were liable to confiscation.
5. To answer the preliminary objection, the learned counsel for the petitioners has submitted that appeal under section 36 of the Ordinance lies against the order of cancellation of the registration passed under section 35 of the Ordinance while the petitioner mainly aggrieved of the confiscation order against which appeal filed under Rule 9 of the Rules was withdrawn.
6. The learned counsel for the petitioners has contended that there is no provisions in the Ordinance for the confiscation of the vehicles on the ground of not having registration certificates.
However, it is only the rules under which an order of confiscation can be passed on such ground and which were not enforced at the time of passing of the impugned order as the rules were enforced on the 5th of April, 1999 and the impugned order was passed on the 3rd of April, 1999.
7. On the contrary the learned A.A.-G. Representing the respondents has urged that the petitioners have not exhausted the remedy available to them under the Rules with reference to Rule 9 of the Rules, whereby a right of appeal has been provided to them and by not availing the same they could not approach this Court in its Constitutional jurisdiction against the impugned order as the alternate remedy was available to them. He has further submitted that the draft rules were published on the 5th of December, 1998 much before the passing of the impugned order and which have come into force with immediate effect as per Rule 2 of the draft rules and which rules were published on the 5th of December, 1998, his contention was that the rules were in the field.
8. According to section 119 of the Ordinance, dealing with publication of and commencement of the Rules, the rule-making power given by the Ordinance has been made subject to the condition of the rules being made after previous publication and then the rules so framed shall be published in the Official Gazette and which will come into force on the date of such publication. For ready reference section 119 is reproduced below:-- "119. Publication of and commencement of rules.--(1) Every power to make rules given by this Ordinance is subject to the condition of the rules being made after previous publication.
(2) All rules made under this Ordinance shall be published in the Official Gazette, and shall, unless some later date is appointed, come into force on the date of such publication."
9. According to section 22 of the West Pakistan General Clauses Act, 1956 (hereinafter to be called as the Act) prescribes that whenever the rule-making power has been given to an authority and it has also been provided that such powers subject to the condition of the Rules or bye-laws being made after previous publication, then the authority before making the rules shall publish, draft of the proposed rules or bye-laws for the information of the persons likely to be affected thereby, and shall publish with the draft a notice specifying a date on or after which the draft will be taken into consideration. In the light of the provisions of section 119 of the Ordinance and section 22 of the Act the authority prepared the draft rules and then these were published on the 5th of December, 1998 for the information of all concerned. The relevant portion of the notification reads: "No, 94/A-1/Seiz. Veh.---The following draft of rule which the Government of North-West Frontier Province, in exercise of the powers conferred by section 25 of the Provincial Motor Vehicles Ordinance, 1965 (W.P. Ord. No,XIX), proposes to make, are hereby published as required by section 119 of the said Ordinance, for the information of persons likely to be affected thereby and notice is hereby given that the said rules, together with any objection or suggestion with respect thereto which may be received by the Secretary to Government of North-West Frontier Province, Excise and Taxation Department, Peshawar, within a period of ten days from the date of publication of this notification in the Official Gazette, shall be taken into consideration on the expiry of the said period: Draft Rules: Short title and commencement.--(1) These rules may be called the North-West Frontier Province (Seizure and Disposal of Motor Vehicles) Rules, 1998
(2) They shall come into force at once."
10. It is on the 5th of April, 1999 when the rules were published through a notification and the relevant portion of which is also reproduced: "No, SO (Taxation) FD/MVT-18/99.---In exercise of powers conferred by section 43 read with subsection (4) of section 25 of the Provincial Motor Vehicles Ordinance, 1965 (N.-W.F.P. Ordinance No, XIX), the Government of North-West Frontier Province, is pleased, after taking into consideration the draft rules previously published with the Government of North-West Frontier Province, Excise and Taxation Department, vide No,91/A-1/ Seiz: Veh:-- Notification dated 5th December, 1998, to make the following rules:-- RULES
1. Short title and commencement.--(1) These rules may be called the North West Frontier Province (Seizure and Disposal of Motor Vehicles) Rules, 1999.
(2) They shall come into force at once."
11. The learned counsel for the petitioners has canvassed that the day (3-4-1999) on which the impugned order of confiscation of the vehicles was passed purportedly under the rules the same were not in the field and have been promulgated on the 5th of April, 1999, after two days of the impugned order, the rules were published through a notification. The learned A.A.-G., on the other hand, has submitted that the draft rules were published through a notification, on the 5th of December, 1998 with a Rule 2 prescribing that the same will come into force at once indicating that the rules were promulgated through a subsequent notification on the 5th of April, 1999, the same had already taken effect in view of the draft rules already being published on the 5th of December, 1998. His this argument has got no leg to stand upon. The draft rules which were published on 5th of December, 1998 were only for information of all concerned with a purpose to invite the suggestions/objections with respect to the draft rules to be promulgated later on as per provisions of section 119 of the Ordinance and section 22 of the Act and it would be the date on which the rules would come into force as prescribed in section 119 of the Ordinance and according to which it would be either the date of publication of the rules, not of the draft rules or a latter date to be appointed by the rules.
12. In the instant case both the draft rules as well as the rules published on different dates have been mentioned in Rule 2 that these shall come into force at once would mean that the rules which have been published on the 5th of April, 1999 and not the draft rules published on the 5th of December, 1998. The impugned order was passed on the 3rd of April, .1999 before the enforcement of the rules purportedly under which the impugned orders have been passed and at which time the authority was not empowered to pass an order of confiscation. It is also an admitted position that the rules/notification are not retrospective in their operations. A reference in this respect may be made to a case "Dr. Shahida Nasreen, Additional Medical Superintendent, Services Hospital, Lahore v. University of the Punjab through Vice-Chancellor" (PLD 1999 Lahore 207) wherein it was held in para. 16 that "it is settled law that a notification does not have retrospective effect", hence the impugned order of confiscation passed on 3rd of April, 1999 is void ab initio and is held to be illegal and without lawful authority and unsustainable.
13. The objection over the incompetency of the writ petition on the ground of non-availing the remedy available to the petitioner in Rule 9 of the Rules is also unsustainable as the order was passed on a day when the marks were not in existence and the order on its face is void ab initio as held above.
14. Resultantly while accepting this writ petition the impugned order of confiscation of the vehicles passed on 3-4-1999 is set aside. No order as to costs.