MUHAMMAD NAWAZ ABBASI, J.---Civil Petition for Special Leave to Appeal bearing No,2719 of 2001 has been directed against the order dated 19-4-2001 passed by a learned Division Bench of Lahore High Court, Rawalpindi Bench, in Writ Petition No,660 of 2000 on the basis of judgment dated 1-2- 2001 delivered in Writ Petition No,9436 of 2000.
2. Civil Petition for Special Leave to Appeal bearing No,238-L of 2003 has been filed against the order darted 20-1-2003 passed by a learned Single Judge of Lahore High Court, Lahore, in Writ Petition No,692 of 2003 on the basis of judgment dated 10-12-2001 passed by a Full Bench of the Lahore High Court in Writ Petition No,2418 of 2001. Civil Petitions for special leave to appeal bearing No,2397 and 4213-L of 2002 have been preferred against the judgment dated 10-12-2002 of the Lahore High Court passed in Writ Petition No,2418 of 2001. The grievance of the petitioners in all the above four petitions are common, therefore, the same need disposal together.
3. The contrivers between the parties started on the promulgation of "The Provincial Motor Vehicles (Amendment) Ordinance, 1999 (Punjab Ordinance No,XLVI of 1999) by the Government of Punjab by virtue of which section 69-A was added in Punjab Motor Vehicles Ordinance (No,XIX of 1965) introducing the franchise urban transport scheme in the private sector. On the invitation of applications by the Government of Punjab through publication in the newspapers for grant of franchise route permit for operation of stage carriage on the specific routes, the private respondents having fulfilled the required conditions applied for grant of franchise route permits and obtained franchise agreements for specific routes in Lahore and Rawalpindi/Islamabad.
4. The petitioners are owners of wagons and mini-buses and being engaged in the transport business, were holding permits for the routes for which franchise agreements were given and their grievance is that in consequence to the grant of franchise agreement by the Government of Punjab to the private respondents for specific routes under section 69-A of the Punjab Motor Vehicles Ordinance, 1965, the permits issued to them by the Regional Transport Authorities for stage carriage of said routes stood automatically cancelled and they have been denied to the right of transport business on these public routes for the benefit of franchise transport companies.
Section 69-A provides as under:-- "69-A. Franchise.---(1) The provisions of this section shall have effect notwithstanding anything contained in` this Ordinance.
(2) In this section "franchise" means a permit granted to.An operator for operation of stage carriages with a carrying capacity of 70 or more passengers by a Bus Service providing and maintaining the prescribed facilities on routes in respect of which it is declared by the Government that only a Bus Service of the nature referred to above shall be allowed to operate stage carriages thereon to the exclusion of all other stage carriages.
(3) The Government may direct the Regional Transport Authority to grant a franchise.
(4) Where the Regional Transport Authority grants a franchise under subsection (3) all existing stage carriage permits in respect of routes or a route or a portion of a route to which the franchise relates shall stand cancelled on the date notified for the purpose by the Regional Transport Authority concerned and the Regional Transport Authority may not grant fresh stage carriage permits for such routes or a route or a portion of a route for duration of the franchise.
(5) The provisions of 60 shall not apply to a franchise.
(6) In the case of stage carriages in relation to which a franchise is granted the power to fix maximum fares shall vest in the Regional Transport Authority.
(7) (a) The Regional Transport Authority concerned may cancel a franchise, or may suspend a franchise for such period as it deems fit:--
(i) for the breach of any condition attached to the franchise or of any condition or on any ground contained in the prescribed franchise Agreement; or
(j) on any other ground mentioned in section 62: Provided that no franchise shall be cancelled or suspended unless the holder of the franchise has been given an opportunity of being heard: Provided further that the Regional Transport Authority may. After such hearing, rather than cancel or suspend the franchise, vary the terms and conditions thereof.
(b) Where a franchise is cancelled or suspended or the terms and conditions thereof are varied, the Regional Transport Authority shall record in writing the reasons for such cancellation or suspension, or variation and shall deliver a copy thereof to the bolder of the franchise.
(c) On cancellation of a franchise, the holder of the franchise shall, unless the Regional Transport Authority in the order of cancellation directs to the contrary, be entitled to refund of the franchise fee for the unutilized portion of the franchise period.
(8) Refusal to transfer a franchise or revise fares on routes to which a franchise relates shall be appealable under section 62.
(9) A franchise shall not be transferable in any manner whatsoever except with the prior permission in writing of the Regional Transport Authority and subject to such conditions as may be stipulated in this behalf.
(10) Notwithstanding anything contained in Chapter VIII of the Motor Vehicles Act, 1939 (IV of 1939) the Regional Transport Authority may attach to a franchise such conditions relating to insurances as it may deem fit.
(11) Save insofar as provided otherwise in this section the provisions of this Ordinance or any other law relating to Motor Vehicles shall apply mutatis mutandis to a franchise.
(12) All actions taken by the Government for introducing the franchise system before the coming into force of this Ordinance shall be deemed to have been validly taken."
5. The enactment of the above provision has been mainly challenged on the touchstone of Articles 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973.
6. Mr. Muhammad Akram Sheikh. Senior Advocate Supreme Court while representing some of the petitioners has contended that the Government of Punjab by insertion of section 69-A in the Punjab Motor Vehicles Ordinance, 1965 excluded a large number of wagon and mini-bus owners from the transport business and thereby created monopoly of the few bus companies through the franchise agreement for specific routes in utter disregard to the Constitutional mandate regarding the right of trade and business of the citizens. The learned counsel in support of the arguments has placed reliance on Dr.Tariq Nawaz v. Government of Pakistan (2000 SCM R 1956), Arshad & Company v. Capital Development Authority (2000 SCM R 1557) and Pakistan Tobacco Company Ltd. v. Federation of Pakistan (1999 SCM R 382). Mr. A.K. Dogar, Advocate Supreme Court, representing another group of petitioners while arguing on the same lines has submitted that the law in conflict to the Constitutional provision must be struck down and in support of his arguments has placed reliance on Jamil Ahmed v. Federation of Pakistan (2001 YLR 866). Mr. Aftab Gul, learned counsel appearing for private respondents (M/s. Varan Toth) has submitted that section 69-A ibid was enacted in the public interest to solve the transport problem in the big cities and was not in conflict to the Constitutional mandate. The learned counsel in support of the proposition referred Saghir Ahmad v. State of U.P. (AIR 1954 SC 728). The learned Advocate-General, Punjab, has supported the judgment of the High Court in the light,of law laid down by this Court in East and West Steamship Co. v. Pakistan (PLD 1958 SC (Pak.) 41) and Ghulam Rasool v. Muhammad Hayat (PLD 1984 SC 385).
7. We having heard the learned counsel for the parties, are of the view that the question relating to the constitutionality of section 69-A of the Punjab Motor Vehicles Ordinance, 1965 and its conflict if any with Article 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973, would need examination and consequently we are inclined to grant leave to appeal in all these petitions to consider the following questions of law of public importance:--
(a) Whether the insertion of section 69-A in Punjab Motor Vehicles Ordinance, 1965 by virtue of Punjab Ordinance No,XLVI of 1999 is in the public interest and is not violative of the Constitutional guarantee of right of trade and business under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 and further is in consonance with the provisions of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance No,V of 1970.
(b) The addition of section 69-A in the Punjab Motor Vehicles A Ordinance 1965 would not amount to protect and promote the vested interest of a specified class by depriving large number of people associated with the transport business from their legitimate right of earning and they have not been denied the equal and fair opportunity of right of business as provided under the Constitution of Islamic Republic of Pakistan, 1973.
(c) The exclusion of wagons , and mini-bus owners from transport business under franchise routes scheme is not a departure to the policy of Constitution of free competition and, would not amount to take away the right of people from using the vehicle of their own choice as means of transport and compel them to travel through the franchise transport.
(d) The imposing of unreasonable restriction on the free trade and business is not a social and economic exploitation as provided in Article 3 of the Constitution of Islamic Republic of Pakistan, 1973.
(e) The provision of section 69-A ibid for exclusion of wagons and mini-buses as stage carriages from the franchise routes in the private sector is not a discriminatory law and the distinction created is based on reasonable classification. Leave is accordingly granted.
8. We having considered the request of the learned counsel for the petitioners for suspension of the operation of the impugned judgment have not been able to find out any valid ground for grant of such relief and consequently would recall the order dated 31-12-2002 passed in C.P. No,4213-L of 2002 through which the interim relief was given in the said petitions.
9. However, while keeping in 'view the nature of the controversy and the importance of the matter, we direct for fixation of all these appeals before a larger Bench within a period of two months. The Parties if deem necessary may place additional documents on record.