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Constitutional Petition No. D‑232 of 1982, decided on .5th May, 1982.

‑‑ R. 34, sub‑rule (2‑A).‑West Pakistan Motor Vehicles Ordinance (XIX of 1965), S. 43(2)(c) & (e)‑Vires and relatability to‑ Government of Sind adding sub‑rule (2‑A) in r. 34 of West Pakistan Motor Vehicle Rules, 1969‑Added sub‑rule requiring some parti culars of vehicles to be exhibited ‑Contention that added sub‑rule not relatable to cls. (c) & (e) of subsection (2) of S. 43‑Held, on consideration of provisions contained in Ss. 43, 28 & 74, rules besides being intro vires could be framed under and by aid of S. 43 and subsection (2), cl. (e) thereof authorises Government to provide, for manner in which prescribed particulars have to be exhibited.

M. Ilyas Khan for Petitioners.

Muhammad Ibrahim Memon, Addl. A.‑G. for the State.

‑‑Petitioners Nazir Ahmad and Muhammad Ismail are respectively owners of motor‑cab (taxi) and motor‑rickshaw, further details whereof are given in the petition. It is the case of the peti tioners that they have got all the relevant documents and the permits to ply them as public vehicles. Main grievance of the petitioners is that respon dent No. 1 namely Government of Sind vide Notification dated 6th April, 1981 have amended West Pakistan Motor Vehicles Rules, 1969 (hereinafter to be referred as the said Rules) and have added sub‑rule (2‑A) in Rule 34 which is reproduced as under :‑

"In every motor‑cab, rickshaw and motor‑cab used as taxi, the registra tion mark, name and Photograph of the Driver and name and address of the owner of the vehicle shall be exhibited in a fixed metal frame of six square inches inside the cabin in such manner as to be clearly visible to the passengers travelling in such vehicles."

It is contended that this new rule has created problems and also is not practicable for the reason that motor‑cabs and rickshaws are driven in shifts by different drivers and some of them are engaged on daily wages. It is also contended that when Rule 104 of the said Rules is available which provides that the driver of public service vehicle shall display on his left side of breast or left arm a metal badge containing identification by. number or pro fession and also that he has to keep the identity card which is sufficient for the purpose of identification. There is no necessity of introducing sub rule (2‑A) into rule 34 of the said Rules. Legality of the Notification mentioned above is also assailed on the ground that the said Notification purports to have been issued in exercise of powers under section 43 of Motor Vehicles Ordinance, 1965 (hereinafter referred to as the said Ordi nance) and introduction of sub‑rule (2‑A) in Rule 34 is outside the scope of section 43 of the said Ordinance.

We have heard Mr. M. Ilyas Khan Advocate for the petitioners and Mr. Muhammad Ibrahim Memon, Additional Advocate‑General. He has filed comments from respondent No. 4 namely Assistant Inspector‑General of Police. So for the first contention raised on behalf of the petitioners as stated above is concerned, it will suffice to say that difficulties expressed by the petitioners are of no substance in view of the advantages explained in the comments by the Government. According to respondent No. 4 the amendment is made in order to enable the travelling passengers to note the names of the drivers and owners and their addresses in the event of mis behaviour, excess fare charging and refusal to carry passengers, for approach ing concerned authorities for necessary action. It is further stated that in the comments that so far rickshaws are concerned columns relating to name, parentage and address and photograph of driver have been replaced by columns showing rate of fare per mile and rate of waiting charges per hour The proposed amendment to extent stated above is under consideration of the Government and final decision would be taken in due course. It is further stated in the comments that so far taxis are concerned there was no such problem for the reasons firstly, that mostly taxis are owned by the drivers themselves Secondly that the drivers of the taxis do not work in shifts as it done in the case of motor rickshaws. In any case no comment is to be made by us on this aspect of the motter‑for the reason that it is the exclusive function of Government agencies specified in the Ordinance to make rules and amendments within the scope laid down.

The next contention of the petitioners is that Rule 104 is already avail able with regard to the driver's badge and identification hence the amend ment made by the Government as stated above was unnecessary. It can safely be stated at this stage that rule 104 of the said Rules is no bar and does not come in the way of other provisions in the main Ordinance and rules framed thereunder empowering the concerned agencies to make amend ments. What is more that the particulars to be exhibited by the presently impugned rule are vastly different in purport and extent than the particulars required under Rule 104. The impugned rule definitely makes identifica tion of the driver more convenient and less fallible.

The next point which is urged as most important point in this case, is to relation to source of legal provisions to provide for amending the rules. The learned Advocate has stated before us that section 43 of the Ordinance would not have been pressed into service by the Provincial Government for the purpose of framing the impugned rule. He pointedly drew our attention to clauses (c) and (e) of subsection (2) of section 43 to show that the impugned rule was not relateable to the said provisions. These two clauses state that without prejudice to the generality of the forgoing powers (contained in subsection. (1) of section 43), the rules may provide for the following matters, namely:-

"(c) the issue of certificates of registration and certificates of fitness and duplicate of such certificates to replace certificates lost, destroyed or mutilated ;

(e) the manner in which registration marks and the particulars referred to in section 38 and other prescribed particulars shall be exhibited,"

On a reading of clauses (c) and (e) of subsection (2) of section 43, conjointly with subsection (1) of the same section, the position that emerges is that by virtue of subsection (1) of section 43, the Government may make rules for the purposes of carrying into effect the provisions contained in Chapter 3 (sections 23 to 43) of the Ordinance while by virtue of subsection (2) an ancillary power is provided for special circumstances, without prejudice to the generality of powers contained in subsection (1). The controversy in the present case is in regard to exhibiting of particulars of vehicle, and, therefore. clause (e) will have to be examined, because the said clause pro vides for framing of such rules as prescribe the manner in which other prescribed particulars in relation to the vehicle have to be exhibited. It would thus seem that apart from the provisions contained in subsection (1) of section 43, even clause (e) of subsection (2) of section 43 of .the Ordi nance would authorise the Government to provide for a manner in which the prescribed particulars have to be exhibited."

The next question that then arises is whether such particulars, as are referred to in the rules, can be termed to be such particulars as could be prescribed for the purposes of exhibiting. In that context, reference to section 28 of the Ordinance becomes necessary. The said section states that the registering authority may, for reasons to be recorded, refuse to register any motor vehicles, which does not comply with the same requirements as are contained in the four clauses appearing in subsection (1) of section 28 of the Ordinance. Clause (b) states that registration could be refused if the vehicle does not comply with the requirements of Chapter 6 of the Rules made thereunder. Section 74 is contained in Chapter 6 of the Ordinance, and the said section also provides for a rule‑making power for the Govern ment. As in the scheme of section 43, this section also is divided in two subsections. Subsection (1) provides for a general power to authorise the Government to make rules, regulating the construction, equipment and maintenance of motor vehicles and trailors. Subsection (2) of section 74, provides for rule‑making power without prejudice to the generality of the provisions contained in subsection (1). Clause (a) of the subsection l2) of section 74 clearly states that rules may be framed providing for exhibiting tile particulars. other than registration marks, in the vehicle, and even the manner in which such particulars are to be exhibited. Such words can cover the particulars which the impugned rule makes obligatory to exhibit.

On a consideration of the provisions contained in sections 43, 28 and 74, it would clearly appear that the rules, besides being intra vires could be framed under or by aid of section 43 of the Ordinance. Clause (e) of subsection 2 of section 43 provides for rules relating to exhibiting oil "other prescribed particulars". Section 28 again clearly points to the registering authority refusing to register a vehicle if the requirements of Chapter 6 of the Ordinance or the rules framed thereunder, are not complied with. Section 74(2)(n) which is contained in Chapter 6 of the Ordinance, distinctly provides for the exhibiting of particulars other than registration marks which may be prescribed. It would thus, appear that since section 43, is a general section and clause (e) of subsection i2) of section 43, refers to exhibiting of any prescribed particular, the rules can be framed, which may be in the nature of prescribed particulars, by any provision of the Ordinance. The words "other prescribed particulars in section 43(2)(e) refer to such particulars as may be prescribed by aid of any of the provisions of the Ordinance.

Under these circumstances, it is trot difficult to hold that the Notification is intra vires.

In any case no argument has been pressed before us to persuade us to arrive at a conclusion that a notification has to be held invalid for the mere reason of mention of a wrong section in a particular law enabling the issuance of the same. In any case we have arrived at the conclusion that the power to issue the impugned notification does vest in the Provincial Government.

We do not find any reason to interfere as such the petition is dismissed.

K. M. A. Petition dismissed.

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