MUHAMMAD MUZAMMAL KHAIM, J.~ This judgment proposes to decide two Constitutional petitions (W.P. 4888 of 2004 and W.P. 11016 of 2003), as both these petitions arise out of similar circumstances, raise alike questions of law/facts and require similar determination against the same set of respondents.
2. The petition in hand relates to Route No. 56 starting from Chungi Wahga, Lahore, to Chungi Amer Sidhu, Lahore via Droghewala, Shalamar Bagh, C.M.H., Rahat Backers, Walton More, Walten Road, Qanchi Amer Sidhu, which has been franchised by the District Regional Transport Authority, Lahore vide Notification No. 1776/DRTA/PBS/26/2004, dated 31.3.2004 for operating/plying buses by M/s. Premier Bus Service with immediate effect. The writ petitioners are transporters and they ply their buses on the said route under a licence issued by respondent No. 3 valid till different dates, maximum limit of those permits/licences is upto 14.2.2005. The notification dated 31.3.2004 envisaged that permits/licences of the vehicles already operating on route No. 56 after the franchise of the route would stand cancelled, instantly and the permit holders of the Stage Carriages Plying on the aforementioned route with valid permits, will be at liberty to get their permits validated for the remaining period. Secretary to the District Regional Transport Authority, Lahore (respondent No. 3) subsequently on 3.4.2004 issued corrigendum to the earlier notification dated 31.3.2004 by which the holders of Stage Carriage plying on route No. 56 were give right to get the validity of their route permits for the remaining period for some other route of their choice. The petitioner and some other Stage- carriage Route Permit Holders approached respondent No. 3 for renewal of their permits for the remaining period but the renewal was refused on the basis of corrigendum notification dated 3.4.2004, which has, been assailed by the 'petitioner through this Constitutional petition.
3. The writ petitioners in the other Constitutional petition (W.P. 11016 of 2004) are also transporters and are owners of Mini Wagons/Hiaces which they ply on Route No. 14/34 starting from Railway Station to Kahna Nau, Lahore, under Route Permits issued by the District Regional Transport Authority, Lahore, valid till April, 2005. These routes were also franchised by respondent No. 3 vide notification No. 2109-14/DRTA- CB/F-2004, dated 2.4.2004 for route No. 14 and vide notification dated 211627/DTRA-CP/F-2004 for Route No. 34, with immediate effect, by renumbering it, as City Route No. 9 giving exclusive right to operate public transport to M/s. Chatha Brothers (Pvt.) Limited in exercise of its powers under Section 69-A(4) of West Pakistan Motor Vehicles Ordinance, 1965. The notification in question provided that the Company in whose favour the franchise has been allowed, will initially operate 30 buses and will be bound to increase the number of buses in future upon the direction of the D.R.T.A, It also provided that the route permits of the existing Stage Carriages in operation shall stand cancelled with immediate effect and the operators/owners of the wagons can get any alternate route of their vehicles without any further charges, for the remaining period. The petitioner in Writ Petition No. 11016 of 2004 challenging both these notifications, prayed those to be declared illegal, void and of no legal effect.
4. The learned counsel for the petitioners in Writ Petition No. 4888 of 2004 challenged the issuance of corrigendum notification dated 3.4.2004, asserting that the same is illegal and un-authorized having been issued by the Secretary D.R.T.A. Who had no jurisdiction to take any kind of decision to the exclusion of the Authority. According to his submissions corrigendum, which added a single line to the original notification, deprived the petitioners of their valid permits, without notice/hearing of the petitioners, thus the same is void. He further contended that the petitioners are entitled to ply their vehicles till expiry of their permits. The learned counsel for the other petitioners argued that though the impugned notification franchised the route in question but the party in whose favour the franchise has been granted, failed to bring on road the agreed number of Air-Conditioned buses in violation of the agreement dated 8.6.2002 which is detrimental/inconvenient to the public at large, thus, the franchise may be declared, as void. Cancellation of permits of the petitioners without notice/hearing was also claimed to be opposed to law, as well as, the principle of natural justice as according to him the pre-requisites of the law were not fulfilled, It was also submitted that though act of franchise is contrary to the Constitutional warrantees, being discriminatory in nature yet the same is also against the policy of the Government reflected in the statement of the President of Pakistan given about the franchise of routes in Rawalpindi, having been highlighted by the press. Act of the respondents was also challenged, as the same according to the petitioners, amounts to deprive them of their Constitutional right of doing their lawful business of their choice.
Principle of locus Poenitentiae was relied to contend that by issuance of route permits in favour of the petitioners, valuable right accrued in favour of the petitioners which cannot be taken away at their back, In this behalf reference was made to the judgments of the Hon-ourable Supreme Court in the cases of Muhammad Nawaz v. Federation of Pakistan and 61 others (1992 SCMR 1420), Muhammad Zakir Khan v. Government of Sindh and others (2004 PSCC 728) and Pakistan International Airlines Corporation through Chairman v. Inayat Rasul (2003 SCMR 1128).
5. The learned counsel appearing on behalf of the^ respondents and the interveners i.e. M/s. Premier Bus Service and M/s. Chatha Brothers (Private) Limited, opposed the arguments of the petitioners and supporting the notifications under attack, urged that the right of the DRTA to franchise different routes within the city Lahore, were earlier found to be lawful by this Court through different decisions, thus, the petitions in hand are not maintainable as the matter at the present is pending determination before the Honourable Supreme Court against a decision by the Full Bench of this Court. Locus standi of the petitioners to maintain a Constitutional petitions in representative capacity was also challenged, besides maintaining that Governmental policy matters regarding franchise of routes, are not open to challenge before this Court and the petitioners if are serious about their claim they should file appeals under Section 66 of the Motor Vehicle Ordinance, 1965. Corrigendum notification was claimed to be of only an explanatory nature which according to the respondents, could not be assailed without first challenging the original notification dated 31.3.2004. It was further submitted that the District Regional Transport Authority in exercise of its powers under Section 69-A(4) of the Ordinance, 1965, franchised the routes in dispute through a lawful manner and the transport companies in whose favour the franchise has been allowed, have already started plying their buses under, lawfully concluded agreements and they cannot be deprived of their vested rights, unless and until they commit any default. Provisions of Section 69-A of the Ordinance droid) were emphasized in support of jurisdiction of the DRTA to cancel permits of the petitioners, besides it was claimed that the petitioners have been granted alternative routes without charging any additional fee and thus they cannot be claim deprivation of their livelihood or any discriminatory attitude on the part of the respondents. According to the respondents-Company's holding franchise routes, had already operative network on 80 percent of the alignment of routes given to them and that number of buses required to be put on these routes, is much more than the passengers load capacity available, hence j stand of the petitioners that the companies have violated the agreement, is without any substance. The learned counsel for the respondents relied on the [Vol. XXIII judgments in the case of Saeeds High School v.
Government of Pakistan (PLD 2004 Lah. 305), Government of Pakistan v. Sikandar Khan and others (PLD 1987 Pesh. 68), Arshid Mehmood and others v. Government of the Punjab (PLD 2003 SC 567) and the unreported judgment by a Full Bench of this Court in Writ Petition No. 2418 of 2001 and other by a Division Bench. Of this Court in Writ Petition No. 9436 of 2000.
6. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record appended, herewith. Since, the learned counsel appearing on behalf of the interveners who have filed different applications for their impleadment and vacation of injunctive order issued by this Court, have been heard, I feel no necessity of dealing with those applications separately and' those are being disposed of through this judgment. Primarily controversy requiring determination by this Court, hinges around the dispute as to whether DRTA was competent to franchise the routes during the currency of valid route permits issued by it in favour of the petitioners and whether the complained act, amounts to depriving them of their Constitutional rights of adopting the lawful business of their choice. Undeniably the transport business had been controlled/regulated through different statutes and at the present the law applicable is the Motor Vehicle Ordinance XIX of 1965. The relevant provision for resolving the controversy in these petitions is Section 69-A which was added to the Ordinance in 1999 (Ordinance IX of 1999), its sub-section (2) defined that word "franchise" would mean a permit granted to an operator for operation of stage carriages with a capacity of 70 or more passengers by a bus service providing and maintaining the prescribed facility. Power with regard to grant of franchise is given in is sub section (4) whereby all the existing stage carriage permits shall stand cancelled automatical on notification by the Regional Transport Authority. The relevant part of Section 69-A of the Ordinance XIX of 1965 is reproduced below for convenience:- "69. 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 an 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 sub-section (3) M1 existing stage carriage permits in respect of the 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 the duration of the franchise."
(5) ....
(6)....
(underlining is mine, to highlight the power in question)
7. The above provisions manifest that after notification of franchise of any route by concerned authority, the existing permits shall stand rescinded by operation of law and for this purpose no formal cancellation order is needed, In these circumstances absence of notice or opportunity of hearing could not be claimed by the petitioners, as their permits stood cancelled automatically.
The District Regional Transport Authority/respondent No. 5 has shown a grace by allowing the petitioners to have alternate route permits for the route other than those franchised, without any further charges, In view of this concession shown to the petitioners, it does not lie with them that they have been deprived of their business in violation of the warrantees, available to them under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973. Freedom of trade business or profession guaranteed by the Constitution is subject to certain qualifications as may be prescribed by law and can be hedged to the extent of a lawful prohibition, so imposed, thus the restriction created/imposed by Section 69-A(4) of the Ordinance, 1965 cannot be claimed, as prayed by the petitioner. For similar questions of discrimination, under Article 25 of the Constitution term equality before law, referred to different classes created by a statute, for fulfilling the purposes for which the statute was promulgated. The rational behind the franchise of route is to provide qualitative, comfortable and excessive transport to the public and such classification being permissible under the Constitution, cannot be knocked down by simply saying it, to be discriminatory. Reference in this behalf can outly be made to the cases of I.A. Sherwani and others v. Govt, of Pakistan (1991 SCMR 1041), Govt, of Balouchistan v. Aziz Ullah Memon and 160 others (PLD 1993 SC 341) and M/s. Gadoon Textile Mills and others v. WAPDA and others (1997 SCMR 641).
8. Vires of the provisions of Section 69-A(4) of the Ordinance (ibid) were scrutinized by a Full Bench of this Court, on the basis of different touchstones which need not be recapitulated here again, the entire case- law applicable was thrashed and it was held that those '1 provisions are intra-vires of the Constitution and all the question formulated in the judgment, referring the matter to the Honourable Full Bench, covered the controversy canvassed now by the petitioners, and were answered against them in the judgment given in Writ Petition No. 2418 of 2001. Alike view was taken by the Division Bench of this Court on 1.2.2001 in Writ Petition No. 9436 of 2000. Again the Full Bench judgment in Writ Petition No. 2418 of 2001 leave to appeal has been granted by the Honourable Supreme Court in the case of Arshid Mehmood v. Government of the Punjab (PLD 2003 SC 567) but while granting leave, operation of the judgment passed by this Court, was not suspended and the interim injunction earlier issued in C.P. No. 4213-L of 2002 was recalled, It shows that prime facie stance taken by the petitioners, was not graciously considered to stay the operation of the franchise granted by the DRTA.
9. So Jar as issuance of corrigendum by the Secretary DRTA is concerned, he being an official of the Authority, issued corrigendum obviously under the decision/dictates of DRTA. This corrigendum only added the following words to the earlier notification dated 31.3.2004 namely: "for any other non-franchised route of their choice." The addition, attacked by the petitioners of Writ Petition No. 4888 of 2004 created a right of alternate route permit in favour of the petitioners and it is not against their interest. Be that as it may, this corrigendum brought the original notification in line with the other notifications impugned in Writ Petition No. 11016 of 2004 which were Undisputedly under the approval of the DRTA. These notifications show that the Secretary is the person who corresponds and issues the orders/notifications on behalf of the DRTA, hence, the challenge of the petitioners on this count, is of no help to them.
10. No doubt these petitions have been filed for the benefit of all the route permit holders on the route sin question but these petitions have not been filed in representative capacity. Civil Procedure Code, 1908 which is directly applicable to the Constitutional petitions which in its Order-I, Rule 8 lays down the method and manner of filing the representative suits/petitions. These provisions are of directory nature and omission to follow those provisions would result in, follow up of the procedure provided in Order 1, Rules 11 and 12 of the CPC, thus the objection of the respondents, regarding maintainability of the writ petition in representative capacity, is turned down. As regards availability of statutory remedy of appeal under Section 66 of the Motor Vehicle Ordinance, 1965, it has worth in it because any person aggrieved by the refusal to grant permit by the DRTA can challenge the order of refusal in appeal but the relief claimed by the petitioners with regard to franchise of the route could not be prayed in appeal, as is evident from the provisions thereof, thus, the Constitutional petition cannot be thrown on this objection, as well.
11. Applicability of principle of locus Poenitentiae, it cuts both ways because a right of franchise has also been created in favour of the companies holding agreements from the respondents. Since I have already held that permits of the petitioners stood cancelled/rescinded by operation of law, at the strength of Section 69-A(4) of the Ordinance, automatically, the principle of locus Poenitentiae will also not come to their help.
12. For what has been discussed above, I am constrained to hold that both these writ petition have no merit in those, and are dismissed, leaving the parties to bear their on costs.