RIAZ AHMAD Versus THE REGIONAL TRANSPORT AUTHORITY MULTAN,

In this Constitutional petition following prayers have been made:-

(a) that rules 253 and 256 of the Motor Vehicle Rules, 1969, be declared as ultra wires of the fundamental rights enjoined by Article 18 of the Constitution of Pakistan, 1973;

(b) that the order dated 7-11-1991 passed by the Chairman Municipal Committee Burewala for cancellation of No-Objection Certificate granted to the petitioner as well as the order of the Regional Transport Authority/respondent No.1 dated 10-11-1991 refusing the grant of requisite permission to the petitioner for operating the D- Class Wagon Stand Burewala as illegal and void and set aside being without jurisdiction and mala fide;

(c) that in consequence thereof they be directed to facilitate the operation of the petitioner's Wagon Stand established in Block 1, Burewala.

2. The facts giving rise to this Constitutional petition shortly stated are that on 3-5-1990 the petitioner made an application to the Municipal Committee Burewala for grant of no objection certificate to establish Wagon Stand at 30-31 "I" Block Burewala. The Chairman, Municipal Committee Burewala granted the requisite certificate on 8-5-1990. The petitioner's case is that he has raised construction over the site with all accessories. He has also purchased 8 wagons and obtained route permits acting bona fide on the said No Objection Certificate. This N.O.C. was re-affirmed by the Chairman, Municipal Corporation through letter, dated 23-8-1990 (Arinexure `C'). Since the matter required clearance from the Deputy Commissioner also according to the practice prevailing the petitioner made an application to the Deputy Commissioner for issuance of similar N.O.C. who called for report about its feasibility from S.P. The S.P. got the matter enquired by the S.H.O. who reported to him that he had inspected the spot and found that the Wagon Stand had already been constructed with all accessories and it was recommended that the same may be sanctioned. The S.D.P.O. Burewala on 3-4-1991 intimated the D.C. that the local police authorities had no objection against issuance of N.O.C. to the petitioner as the Wagon Stand had already been constructed with all accessories at the spot.

3. The D.S.P. Burewala also made a report on 9-4-1991(D.2) in the light of the Motor Vehicle Rules 256/263 from which it appears that he inspected the spot in the light of the said Rules in order to find out whether the proposed Wagon Stand did or did not contravene the said rules. He reported that in the waiting rooms latrines had been constructed separately for gents and females. Waiting rooms according to him had also been constructed separately for gents and females which had the seating capacity of 15 passengers in case of waiting room of females and 25 passengers for gents. Rooms with latrine had been separately constructed for drivers and conductors and at the proposed site a canteen had also been constructed. He also reported that a Mosque had already been constructed for the facility of the passengers to say prayers. According to his report a big hall 17' x 46' had also been constructed under which 8 wagons at a time could be parked and there were separate passages for coming in and going out. According to his report a Workshop had already been provided with Service Station for cleaning wagons. Office and booking office with latrines according to his report had also been provided. He also reported that the Wagon Stand was situated at a distance of 75 feet from the main road, which had been constructed on the, land owned, by the petitioner and in no manner the same could cause any hindrance in the traffic. According to him the Wagon Stand constructed by the petitioner satisfied the_ requirements of the Motor Vehicle Rules 256 and 263.

4. The feasibility of the petitioner's proposed' Wagon Stand was also examined by the 1st Class Magistrate Burewala who inspected the spot. In his opinion the Wagon Stand had been constructed at proper place and in view of increasing traffic and hazards, it would be of great service to the passengers. He also reported that the petitioner was experienced transporter and had good reputation who had undertaken to abide by all the rules and the laws; therefore, he recommended that the petitioner should be given permission to operate the said Wagon Stand. The learned District Magistrate, Vehari called for further comments of Magistrate 1st Class who in detail confirmed the report and the opinion given by the D.S.P. on 9-4-1991 (Annex: `D/2') which has been mentioned above, the repetition of which is avoided so that the judgment may not be unnecessarily burdened. The matter was referred to the Highway Department. The XEN Highway through letter, dated 28-5-1991 (Annex. D/3) wrote that the Highway Department had no objection for establishment of `D' Class Wagon Stand on Dehli Multan Road mile 344 (Lahore Burewala Road) as per proposed site plan by the petitioner. After considering all these reports the learned District Magistrate on 8-6-1991 recommended for grant of permission to the petitioner to establish `D' Class Wagon Stand at Khasra No.31/30/1 (min) 31 measuring 12 marlas. He distinctly referred to the reports of the S.P. Vehari, Executive- Engineer, ` Highway Division Vehari, A.C. Burewala and Chairman M.C. Burewala, who had reported that they had no objection to the establishment of this Wagon Stand.

5. The petitioner on 14-7-1991 made formal application to R.TA. for grant of permission to operate the said Wagon Stand. The matter was included in the Agenda as Item No.9. Before that the Secretary R.TA. on physical inspection reported that the Wagon Stand had provided all the facilities. The meeting was scheduled to be held on 29-8-1991 but the matter regarding petitioner's Wagon Stand was not placed before the R.TA. in this meeting which was, however, subsequently included in the Agenda in pursuance of the interim order passed by this Court.

6. The matter was still pending before the R.TA. but in the meantime Khalid Latif and Muhammad Zaman Nadeem made two applications to the D.C. raising objection against the establishment of Wagon Stand by the petitioner. The Assistant Commissioner Burewala was deputed to hold inquiry. He after recording some evidence came to the conclusion that the petitioner obtained no objection certificate from the Municipal Committee and other departments regarding Khasra No.31/31 which was a public way. He, however, observed that it might be because of the inadvertent entries by the revenue field staff but observed that for obtaining N.O.Cs. for Khasra No.31/29 he would have to apply afresh. He also observed that in view of the statement of Sub-Divisional Officer, Highways the establishment of Wagon Stand at the proposed site would not be possible because it would create traffic hazardous to the inconvenience of public at large. Acting upon this report the Chairman Municipal Committee passed order on the same date i.e. 7-11.-1991 for cancellation of no objection certificate already granted to the petitioner on 8-5-1990 and re-affirmed on 23-8-1990 without hearing the petitioner. On the basis of the same report the R.TA. on 10-11-1991 refused to grant requisite permission to the petitioner for operating D-Class Wagon Stand the legality of which has been challenged in this Constitutional petition.

7. I have heard learned counsel for the petitioner and Municipal Corporation turewala. Learned counsel for Municipal Corporation has raised a preliminary objection that this writ petition is not maintainable, for, the petitioner has an adequate and efficacious remedy of appeal against the order of Chairman, dated 7-11-1991 for cancellation of N.O.C. under section 166 of the Punjab Local Government Ordinance, 1979 before the D.C. as provided in Rule 7 of the Local Council Appeal Rules, 1980.

8. The argument in the facts and circumstances of this case has no substance. The applications by Khalid Latif and Muhammad Zaman Nadeem as a consequence of which order dated 7-11-1990 for cancellation of N.O.C. was passed was made before the D.C. who got an inquiry held by the A.C. on whose report the said order was passed, therefore, in my view the remedy of appeal was neither efficacious nor adquate as whatever opinion was formed b the A.C. the same was on behalf of the D.C. It will not be just and proper to throw the petitioner at the mercy of the D.C. who can safely be held to have already formed an opinion through A.C. in the matter. The objection is, therefore, repelled.

9. Learned counsel for the Municipal Corporation maintained that the petitioner applied for N.O.C. to establish Wagon Stand on Khasra No.30/31 which was found to be Ghair Mumkin passage not owned by the petitioner, therefore, he shall have to make fresh application for establishment of Wagon Stand on Khasra No.31/29 which according to the revenue record was owned by him on which he has constructed Wagon Stand, therefore, this writ petition should be disposed of as having become infructuous because if the petitioner makes an application to establish Wagon Stand at Khasra No.31/29 the same shall be considered on its own merits.

10. I am afraid in my opinion the argument is plainly unsound. According to the copies of the revenue record placed by the petitioner as also by the Municipal Corporation with the written statement, in the revenue record the number of Khasra of the land owned by the petitioner was by mistake wrongly described whereas Khasra number of the land owned by the petitioner should have been recorded as 31/29 for the correction of which the Revenue Officer obtained the permission of the Collector. It is clear that the petitioner applied for establishment of Wagon Stand on the land owned. by him and. in the application Khasra number was not correctly given because the same was B wrongly recorded in the revenue record by mistake which was subsequently corrected as 31/29, therefore, there is no requirement that the petitioner should make fresh application for establishment of Wagon Stand at corrected Khasra number as the land is the same which is also owned by the petitioner which was described by Khasra No.30/31 but was in fact Khasra No.31/29. Learned counsel for the Municipal Corporation when questioned frankly conceded that the constructions have been raised by the petitioner over his own land and not on Ghair Mumkin passage. This objection is, therefore, also found to be of no substance.

11. Learned counsel for the Municipal Corporation argued that N.O.C. was cancelled mainly on the ground that there was an agreement between the transporters and the Municipal Corporation Authorities that no Wagon Stand should be established at a place falling between Petrol Pump and the Chowk and since the petitioner's Wagon Stand according to the site-plan attached with the written statement falls between the Chowk and 'the Petrol Pump, therefore, the same was violative of the said agreement. When asked as to when this settlement took place he stated that this agreement was arrived at in the year 1985-86. He was asked to place on record any material to show that such an agreement was ever entered into and if so as to what is the legal sanction behind it and its effect on the rights of the petitioner to establish Wagon Stand. Learned counsel for the Municipal Corporation frankly conceded that there was nothing in writing as it was an oral settlement. I am afraid if any such settlement had ever taken placed orally, there would have been some noting in the record of the Municipal Corporation for guidance to the Authorities who were engaged in the matter of processing the application for N.O.C. I would be justified in raising a strong inference that. this ground has been mala fide made out in order to withdraw no objection certificate of the petitioner at the instance of Khalid Latif and Muhammad Zaman Nadeem from whom according to the learned counsel for the petitioner applications were got moved by the petitioner's political opponents on the behest of the influential persons. If there was any such settlement there was no reason to grant no objection certificate to the petitioner which was re-affirmed. During all detailed inquiries conducted by the different departments in the matter no such agreement or settlement was brought to the notice of all concerned. I would observe that it was not befitting for the Chairman of the Municipal Committee, Burewala, who is a responsible elected representative of the people to act in such an arbitrary manner in order to deprive the petitioner of his fundamental right to conduct trade and business of establishing a Wagon Stand for which no objection certificate had already been issued in his favour. According to the site-plan attached by the Municipal Committee with the written statement there is a Wagon Stand on the other side between the Petrol Pump and the Chowk. On my query learned counsel for the Municipal Committee on instructions admitted that this Wagon Stand was being operated by the Municipal Committee itself. If there was an agreement as alleged in the year 1985 not to establish any Wagon Stand at such a place there was no reason for the Municipal Corporation not to abide by the said undertaking.

12. The other ground which weighed with the A.C. who made his report on 7-11-1991 which formed the basis for cancellation of N.O.C. of the petitioner was that the establishment of Wagon Stand by the petitioner was calculated to create traffic hazards to the inconvenience of the public at large. When asked to explain this learned counsel for the Municipal Corporation submitted that the Highway Authorities had sanctioned two ways carriage scheme and the traffic according to this scheme would be one way on this road, as such, A.C. might have come to the said conclusion on that score. When further questioned he stated on instructions that this Scheme was approved at the end of 1989 or in the beginning of the year 1990. N.O.C. was issued to the petitioner on 8-5-1990. The Executive Engineer Highway Division Vehari issued letter on 28-5-1991 expressing no objection for the establishment of the proposed Wagon Stand by the petitioner. 1t can safely be concluded that in the opinion of this department the two ways carriage scheme and the proposed one way traffic was not likely to be affected by establishment of Wagon Stand by the petitioner. So much so, in the report made by the D.S.P. (S.D.P.C.) Burewala on 9-4-1991 as discussed above it was clearly stated that the proposed Wagon Stand of the petitioner in no manner would cause hinderance in the traffic. In his opinion the establishment of Wagon Stand by the petitioner at his site was not violative of Motor Vehicle Rules. This position, was further confirmed by the City Magistrate, Burewala, in his report dated 28 3-1991 (Annex. N) in which he specifically stated that the proposed Wagon Stand was 70 feet away from the main road, on the land owned by the petitioner and was not to create any hinderance in the traffic. According to the site-plan attached with this writ petition (Annex. G) on the same road in the same line there is another Wagon Stand known as Burewala Flying Coach just after the General Bus Stand being operated by the Municipal Committee. The correctness of this site-plan has not been disputed according to which the Wagon Stand constructed by the petitioner has an entrance from the back side which opens on the road, therefore, there is no question of any interference in the one-way traffic even if it operates on the said road. In view of these findings recorded by the different departments connected with the matter of establishment of a Wagon Stand recorded much after the Scheme of two ways carriage was sanctioned as alleged it was not open to the authorities now to take a stand that the establishment of proposed Wagon Stand by the petitioner would create hinderance in the traffic. The R.TA. while passing the order, dated 10-11-1991 for declining to grant permission to the petitioner to operate proposed Wagon Stand merely acted upon this finding by the .A.C. dated 7-11-1991 though according to the record shown by the Secretary R.T.A. who is present in the Court the said report was diarised in the office of the R.TA. on 14-11-1991 but the order had already been passed on'10-11-1991 which speaks in volume as to the manner in which the authorities had acted in this case to justify the act of refusal of the permission to operate the said Wagon Stand. In view of the above observations it is not necessary to decide as to whether the petitioner was required to be heard by the Chairman Municipal Corporation before passing the order, dated 7-11-1991 for cancellation of N.O.C. because the said order has otherwise been found to be not only illegal but-.mala fide in law.

13. Article 18 of the Constitution has guaranteed a valuable right to every citizen subject to such qualifications, if any, as may be prescribed by law to enter upon any lawful profession or occupation and to conduct any lawful trade or business. It has, however, been provided that such a trade or profession may be regulated by a licensing system. Since right to enter upon any lawful profession or occupation has been granted by the Constitution, therefore, the grant of licence to regulate the same would not be merely a matter of favour or a mere grant but a citizen would be entitled to get a licence if he fulfills the conditions prescribed by law in that behalf. As has been observed above, the petitioner has constructed the Wagon Stand in accordance with the conditions prescribed by the Motor Vehicle Rules, as reported by the D.S.P. Burewala in his report dated 9-4-1991 which was confirmed by 1st Class Magistrate, Burewala, after inspection of the spot, therefore, respondent No.1/R.TA. was under statutory obligation to grant permission to the petitioner to operate the said Wagon Stand. Even if it be assumed for the sake of argument without conceding that any discretion even then was vested with the R.TA. in the matter of grant of permission (licence) the same according to firmly settled law was required to be exercised justly, fairly, honestly and with maturity because even a slight mistake had the effect of depriving the petitioner of his fundamental right granted by Article 18 of the Constitution. The impugned order, dated 10-11-1991 passed by the R.T.A./respondent No.1 is not only arbitrary but the same has been passed mechanically, whimsically and on considerations which have no logical nexus with the object of law governing the subject.

14. For the foregoing reasons the order dated 7-11-1991 passed by the Chairman, Municipal Committee, Burewala, for cancellation of `No Objection Certificate' granted to the petitioner on 8-5-1991 and re-affirmed on 28-8-1991 and the order dated 10-11-1991 passed by the R.T.A./respondent No.1 are D hereby declared to have been passed without lawful authority and of no legal effect and quashed. Respondent No.1 is hereby directed to issue the requisite permission to the petitioner to operate the above-mentioned Wagon Stand constructed by the petitioner, within fifteen days positively. There will be no order as to costs.

A.A./R-43/L Petition accepted.