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Constitutional Petition Nos. 656 and 1310 of 1986, decided on 4^th August, 1987.

---S. 50(3)--Constitution of Pakistan (1973), Art. 199 Constitutional petition--Timing of Stage Carriage--In absence of -any statutory provision a constitutional petition, held, cannot be maintained for claiming any particular timings.

--Art.199--West Pakistan Motor Vehicles Ordinance (XIX- of 1965), S. 50(3)--Constitutional petition--Timing of Stage Carriage Remedy for--Aggrieved party--Proper remedy for an aggrieved party, held, was to agitate question before higher authorities either in form of appeal, if competent, or by a representation--constitutional petition could not be pressed into service unless violation of some provision of law or statutory rules was shown and that order was without jurisdiction or in excess of jurisdiction for that reason.

---S. 50(3)--Timings of stage-carriage--Question what time was to be allocated to whom, held, could not be adjudicated upon unless there was some statutory provision providing a formula for a-location of times.

---S.50(3)--Timings of stage-carriage--Revised fixed time schedule enforced by authorities after it was recommended by a Committee which had given hearing to representatives of petitioners--None of petitioners, held, could be heard to say later on that timings fixed were favourable to one and prejudicial to the others.

(e) Constitution of Pakistan (1973)--

--Art.199--West Pakistan Motor Vehicles Ordinance (XIX of 1965), S. 50(3)--Constitutional petition against grant of new route permits- Contention of petitioners that new permits were granted to respondents not established--Petition also suffering from laches--Petition dismissed.

(f) Constitution of Pakistan (1973)--

--Art.199--West Pakistan Motor Vehicles Ordinance (XIX of 1965), S. 50(3)--Constitutional petition--Revised time schedule--Stay order- Operation of revised time schedule stayed under Orders of Civil Judge who was competent in the matter--Constitutional petition filed with intention of doing away effect of petitioners failure to file appeal against order of Civil Judge granting injunction--Petition, field, misconceived and unsustainable.

Naseem Farooqui for Petitioners.

Munawar Malik for Respondents Nos.1, 2 and 6.

S. Nasiruddin for Respondents Nos. 3, 4 and 5. Abdur Rahim Kazi, Addl. A.-G. for Respondents.

Dates of hearing: 9th and 13th April, 1987.

By this single order we propose to decide the above two petitions which have come up before us under the following circumstances.

2. The petitioner No.1 above-named is an Association of Bus Owners of Route Karachi-Mirpur Khas, Karachi- Hyderabad via Super Highway, whereas petitioners Nos. 2 and 3 are members of petitioner No.1. The Regional Transport Authority (hereinafter referred to as respondent No. 2) on 24-6-1986 circulated revised Fixed Time Table of the buses plying on route Karachi Hyderabad/Karachi-Mirpurkhas/ Karachi-Sukkur/Karachi-Larkana and, Karachi-Sanghar via Super Highway. There were 36 permits sanctioned to-different parties for plying their buses on the above-noted routes. The petitioner's grievance was that new permit-holders terminated their journey at Hyderabad and used to return upon an upset time schedule thereby causing loss to the petitioners Nos. 2 and 3 rendering their permits ineffective. The above-noted revised time schedule was stated to have been issued without notice to the petitioners who made representation through petitioner No.1 vide their letter dated 20-6-1986 addressed to the Minister of Transport, Sind. The petitioners also at the same time filed C.P. No.574/86 in this Court. During the pendency of the said petition the concerned authorities stayed the operation of the impugned time schedule. The petitioners, therefore, 'withdraw the said petition. The Provincial Transport Authority in its meeting held on 21-7-1986 after hearing the representatives, of the petitioner No.1 and one Malik Feroz Khan, representing the owners of 24 buses plying on the above-noted routes and considering the recommendations of Time Schedule Committee-1 took certain decisions. The petitioner then claimed that the respondents Nos. 3 to 4 through their counsel served a notice upon the Government of Sind through Secretary Transport and Provincial Transport Authority, Karachi, (respondent No.1), who without notice to the petitioners Nos. 2 and 3 reactivated the above-noted time allocation. The petitioners' grievance, therefore, are:

(i) That the revival of the revised fixed time schedule circulated vide letter dated 26-6-1986 of respondent No.2 is void for having been done in violation of the principle of natural justice and statutory provisions;

(ii) That in granting new permits without evaluating the needs of the travelling public and assessing the capacity of the existing permit holders to meet their demand, the action of the respondent No.2 is illegal and of no legal effect;

(iii) That in granting route permits the respondent No.2 had acted arbitrarily without notifying the intending grant and inviting and considering the objections to his proposed action, if any;

(iv) That the grant of the new permits with timings effect has upset the seniority basis with the result that the petitioners buses have been relegated behind the new permit-holding entailing operations in the night which besides being unjust was in

negation of their rights;

(v) That the impugned grants with the fixation of time schedule is tent amount to arbitrary cancellation of the permits of the petitioners Nos.2 and 3.

(vi) That the impugned grants/revision is in breach of the petitioners Nos. 2 and 3's guaranteed fundamental rights. Besides it is unconstitutional inasmuch as out of 36 permits 12 permit-holders (from amongst the respondents without naming them) have been favoured by time fixation which is an act of discrimination.

The petitioner have, therefore, prayed for a declaration that the revised fixed time-table schedule circulated vide letter dated, 24-6-1986 and grant of 12 permits to non-official respondents (without specifically pinpointing them) is illegal, void and without- lawful authority and for an injunction prohibiting the respondents Nos. 3 14 from implementing the impugned grants and revisional timings.

3. The petitioner have, therefore, prayed for a declaration that the revised fixed time-table schedule circulated vide letter dated 24-6-1986 and grant of 12 permits to non-official respondents (without specifically pinpointing them) is illegal, void and without lawful authority and for an injunction prohibiting the respondents Nos. 3 to 14 from implementing the impugned grants and revisional timings.

3. The respondents Nos. 3 to 14 filed objections contending, inter alia, that they were granted, route permits on 22-9-1983. The answering respondents applied for adjustment of timings for their buses in the relevant time schedule but to no effect with the result that the said respondents filed C.P. No. D-884/83 on 19-11-1983 in this Court which came up for hearing on 28-11-1983 when the Additional Advocate-General made a statement on behalf of the Transport Authorities that the timings of the running of the buses of the said respondents for the new classified route will be fixed in the time schedule. It was on that assurance that the said respondents withdrew their petition and this Court vide its order dated 28-11-1983 allowed the timings to the buses of the said respondents on the newly-classified route during night time. It' was, however, challenged by the said respondents through C.P. No. D-955/83 and this Court vide its order dated 5-2-1984 declared the order dated 14-12-1983 as of no legal effect with a direction to the concerned authority to fix the time schedule in accordance with law. The respondents Nos. 3 to 14 thereupon made representations to the concerned authority but without applying its mind to the representations fixed at time schedule while reproducing the same time schedule which was challenged by the said respondents in Petition No. D-955 of 1983. This order was again challenged vide C.P. No.D-43 of 1984 filed in this Court on 15-4-1984. The Secretary Transport, Government of Sind, and Ex Officio Chairman Provincial Transport Authority in the meanwhile adjusted the time schedule of the buses of the said respondents during day time under letter dated 23-5-1984. The said respondents, therefore, withdrew their petition as they were satisfied with the time schedule. The impugned classified route is in accordance with the said time schedule dated 24-5-1984 filed in C.P. No. D. 342/84. The petitioner and others filed C.P. No. D-619/83 challenging the order and time schedule dated 24-5-1984 and this Court disposed of the said petition alongwith other two petitions Nos.491/84 and 661 of 1984 vide its judgment dated 30-10-1984 with the observations:

" If the official respondents have unnecessary or for extraneous consideration have shown favour to any route permit-holders, the proper remedy for an aggrieved party is to agitate the question before the higher authorities either in the form of an appeal, if competent or by a representation. The constitutional jurisdiction cannot be pressed into service unless the violation of some provision of law or statutory rules is shown or it is shown that the order is without jurisdiction or in excess of jurisdiction. There are hundreds of route permit-holders, and therefore, in a Constitutional petition the question that time is to be allocated to whom cannot be adjudicated upon unless there is some statutory provision providing a formula for allocation of the times."

The petitions were, therefore, dismissed in limine.

4. That Hafiz Sher Khan Niazy, Incharge, Super Highways Bus Stand, Mauripur, stopped the 12 buses of the respondents Nos. 3 to 14 from plying their buses on 1-8-1986, after obtaining some recommendations dated 1-7-1986 from the transport authorities which compelled the said respondents to serve legal notices dated 2-8-1986 on Secretary, Transport Authority and Ex-officio Chairman, Provincial Transport Authority, Sind, the respondent No.2 and on the said Hafiz Sher Khan, who is also the President of the petitioner No.1.

5. That said respondents, therefore, pleaded that the revised list of fixed time schedule dated. 24-6-1986 for departure from Karachi and Sanghar, has been prepared by the transport authorities in good faith and by keeping in view the interest of transporters, convenience of passengers, load of traffic and merits of cases. It is denied that the petitioners have any vested right to claim or have timings for plying their buses fixed according to their choice. There has been no discrimination or violation of law or rules. It is claimed that the petition is not maintainable in is and that the petitioners have a remedy for filing appeal under section. 66 of the Motor Vehicles Ordinance which they have not availed of. The petition is claimed to be not maintainable also on the round that the petitioner No.1 is not an aggrieved party.

6. This petition has been brought at the instance of six petitioners, who are transporters and each of them has been granted route permits, for plying 24 passengers buses between Karachi- Hyderabad-Sanghar and other parts of interior of Sind via Super Highways. It is stated that the Provincial Transport Authority (respondent No.1) is authorised to regulate the timings of departure of buses under section 50(3) of Motor Vehicles Ordinance, 1965 read with rule 80 of the Motor Vehicles Rules, 1969. That pursuant to the statement of the Additional Advocate-General Sind, made before this Court in C.P. No.D.884/83 that the time schedule shall be fixed in near future, the Chairman, Regional Transport Authority on 14-12-1983 revised time schedule which was challenged through C.P. No. D.955/83 on the ground of mala fide and in competency of the revising authority. The petition was allowed by this Court on 5-2-1984 thereby holding that the respondent is competent authority and directed it to fix the time schedule in accordance with law. It was in pursuance of the above direction of this Court that on 29-4-1985 the respondent No.1 referred the matter to Time Schedule Committee which consisted of representatives of RTA, RTA (Karachi and Hyderabad) and President of Sind Bus Owners Association. This committee was appointed on 29-4-1985. The committee submitted its report on 6-i1-1985 to the respondent No.1, who summoned meeting of the Board which consisted of Chairman PTA, RTA, Karachi, and members of the Time Schedule Committee. The Board decided to fix the time schedule according to the decision of the committee. Hence on 24th June, 1985 respondent No.1 circulated the revised time schedule with directions to all concerned for the implementation of the same. Its implementation was, however, stayed by the Minister of Transport, Government of Sind. The petitioners assailed the order of the Minister by filing C.P. No. D.610/86 which was admitted and notice was issued to the respondent. On 24th September, 1986 the Secretary of Respondent No.1 authority, appeared before this Court in the said petition and made a statement through the Additional Advocate-General, Sind that the Minister had stayed the order till 31-7-1986 and thereafter the petitioners were not restricted or prohibited from plying their buses according to the revised time schedule. The petitioners, therefore, withdrew their Petition D-610/86. According to the petitioners, the respondent No.1, on one or the other pretext, has failed to implement the said revised time schedule list, dated 24th June, 1986 which has adversely affected the interest of the petitioners. The petitioners, have therefore, prayed:

(a) that the respondents may be ordered/ directed to implement or get the revised time schedule, dated 24th June, 1986 implemented through law enforcing agency as it has been prepared by a competent authority in accordance with law.

7. The stand of the official respondent was that the route Karachi-Sanghar was classified on 20th September, 1983 and 36 permits were issued in September/October, 1983. On 24-6-1986, the RTA, Karachi revised the time schedule as per decision of the Time Schedule Committee No.1, orders of PTA Sind and the approval of the Commissioner/ Chairman, RTA, Karachi. No permits were stated to have been granted at any time immediately prior to the filing of C.P. Ho. D-656/86. It was claimed that the revised time schedule was prepared and issued in accordance with the seniority route permits in their respective group and no injustice was caused to any transporters. It was further averred that there is no provision either in the Motor Vehicles Ordinance, 1965 or Motor Vehicles Rules, 1969 either to notify the intended grant of Permits or invite/receive and hear objections. In the parawise comments filed in C.P., No. D-1310/86 on behalf of the official respondent No.1 it was further stated that pursuant to .the order of the High Court in C.P. No. D.619/86, the Incharge, Super Highways Bus Stands Karachi/ Hyderabad was directed by the respondent No.1 vide his letter, dated 28th September, 1986 to ply the buses on Super Highways, according to the revised schedule issued on 24th June, 1986. The time schedule was actually implemented on 6th October, 1986 by the Incharge, Super Highways Bus Stands Karachi/ Hyderabad, respectively. The Super Highways Bus Owners Association, however, filed an application before the High Court that by issuing the above letter dated 28-9-1986, the Secretary, RTA (respondent No.1 abovenamed) had committed contempt of Court. The respondent No.1, therefore, withdrew his said letter and tendered his unqualified apology, which was accepted by this Court. It was further pleaded that since the revised time schedule, dated 24^th June, 1986 had neither been suspended nor cancelled by the PTA and it had been implemented by both the Incharge, Bus Stands Super Highways, Karachi/ Hyderabad, the respondent No.1, directed them vide his letter dated 14-10-1986 to continue the plying of buses according to the revised schedule issued by him on 24th June, 1986. A suit was filed by one Mr. Sher Khan, being Civil Suit No.1753/86 in the Court of 1st Senior Civil Judge, South, Karachi, challenging the revised time schedule dated 24-6-1986. The Court vide its order dated 3rd November, 1986 passed an ad-interim order of maintenance of status quo which was, later on, confirmed on 8th December, 1986. After obtaining the status quo order the plaintiff in the suit started plying buses in accordance with the old list of the time schedule issued by the RTA Karachi in 1989

8. Mr. N.A. Farooqui, learned counsel for the petitioners made the following submissions:

(i) That the petitioners and each one of them enjoyed a vested right of running their passenger buses under the route permits prevalent as on 24-6-1986 and as the action of the official respondents in modifying the existing route permits without issuing a show-cause notice and providing a hearing to the petitioners had rendered their order void-ab-initio.

(ii)- That now timings for plying of buses introduced by the Revised Fixed Time Schedule have upset the seniority based long continuing time rotation schedule to the detriment and prejudice of the petitioners.

(iii) That the impugned time schedule is favouring 12 (amongst the respondents) of the 36 permit-holders and hence it is illegal and unconstitutional for being discriminatory.

(iv) That the action of the official respondents in granting additional ,route permits for Karachi/Sanghar route via Hyderabad without evaluating the needs of travelling public and ascertaining the capacity of the already existing permit-holders was -illegal and of no legal effect.

9. That Mr. Nasiruddin, learned counsel for the respondents Nos. 3 to 14, on the other hand, advanced the following arguments:-

(i) That the petitioner No.1 is not an aggrieved party as held by "superior Courts and hence is not entitled to file the petition.

(ii) That the petition suffers from vagueness inasmuch as full details of the permits allegedly held by the petitioners Nos. 2 and 3 are not given, the relief claimed is inaccurate and that the petitioners Nos. 2 and 3 have even not disclosed any where in the petition of any violation of law and rules.

(iii) The petitioners have a remedy by filing of an appeal under, section 66 of thr, Motor Vehicles Ordinance, which they have not availed. The petition is, therefore, liable to be rejected on this ground.

(iv) That no new permits have been, granted to any of the respondents and in the absence of any particulars in that behalf his clients are not in a position to meet the case of the petitioners.

(v) That the petitioners have no vested right in fixation of time schedule.

(vi) That the petitioners have not shown that how and in what manner they have been adversely affected by the impugned time schedule. He vehemently urged that no disadvantage or prejudice has been done or caused to the petitioners.

10. That Mr. Nasiruddin, also drew our attention to the recommendations of the Time Schedule Committee to show that the President of the petitioner No.1 was duly heard and hence there was no occasion for the members of the petitioner No.1 with petitioners Nos. 2 and 3 to complain against the impugned time schedule or to contend that it has been prepared without hearing the concerned parties.

11. Mr. Munawar Malik and Mr. A.R. Kazi, Additional A.-G. adopted the same arguments as made by Mr. Syed Nasiruddin. Additionally, Mr. A.R. Kazi, relying upon the proviso attached to Article 18 of the Constitution of Islamic Republic of Pakistan submitted that the right of every citizen to enter upon any lawful profession or occupation has been made subject to such qualifications if any as may be prescribed by law. Inviting our attentions to sections 44, 46, 48 and 49 of the Motor Vehicles Ordinance Mr. A.R. Kazi, submitted that there is no provision to invite the applications at any stage and that the orders passed by the Respondents Nos.1 and 2 are well within their authority and hence the petition is liable to be dismissed as misconceived.

12. We have also heard Mr. Munawar Malik, on behalf of the petitioners in C.P. No.D-1310186.

13. The preliminary legal objections raised by Mr. Syed Nasiruddin, learned counsel for the respondents Nos.3 to 14 do not appear to be without substance. However, I do not propose to dispose of the first above-noted writ petition on any technical ground as we have heard the learned counsel for the parties at length on the merits of the case as well. The answer to the first above-noted two contentions of Mr. Nasim Farooqui is Available in the combined D. B. decision of this Court given in C.P: Nos.191, 619 and 661 of 1984, of which one of us was a party (Ajmal Mian, J). I cannot, I think, do better than to reproduce the relevant excerpts from the above-noted decision. They A are as follows: -

"It may be noticed that the above-quoted rule does not provide that the times of arrival or departure of the stage carriages are to be framed on the basis of seniority of the route permit holders nor there is any other provision in the West Pakistan Motor Vehicles Ordinance, 1965 to that effect. In the absence of any statutory, provision the petitioners cannot maintain a writ petition for claiming any particular timings ...........

If the official respondents have unnecessarily for extraneous consideration have shown favour to any route permit-holders, the proper remedy for an aggrieved party is to agitate the question before the higher authorities either in the form of an appeal, if competent or by a representation. The constitutional jurisdiction cannot be pressed into service unless the violation of some provision of law or statutory rules is that the order is without jurisdiction or in excess of jurisdiction. There are hundreds of route permit-holders and therefore, in a constitutional petition the question what time is to be allocated to whom cannot be adjudicated upon unless there is some " statutory provision providing a formula for allocation of the times. "

14, In so far as ground No.3 is concerned, the learned counsel for the petitioners has been unable to satisfy us from any documentary evidence with respect to the validity of his contentions. The revised fixed time schedule, it is noted, was recommended by a Committee' which had, as stated in the earlier part of the order, given hearing -to the representatives of petitioner No.1 and hence none of the petitioners can now be heard to say that the timings fixed are favourable to some and prejudicial to some others. Any how, the burden to prove this plea was squarely on the petitioners, which they have, as already stated, failed to discharge satisfactorily. This) contention, therefore, also stands repelled accordingly.

15. The last noted contention is equally without substance inasmuch as no new route permits have been granted after 1983. The petition on this issue, therefore, is misconceived and suffers from laches.

16. For the foregoing reasons I would hold the petition being devoid of merits and dismiss it accordingly.

17. Now I take up the other petition. After hearing the arguments of Mr. Munawar Malik, learned counsel for the petitioners it came to light that this petition is wholly misconceived and unsustainable for the simple reason that the operation of the revised time schedule has been stayed under the orders of the learned 1st Senior Civil Judge, South, Karachi passed in Civil Suit No.1753/86. As a matter of fact, what I feel is that this petition has been filed with the intention of doing away the effect of the plaintiffs (petitioners in this case) failure to file appeal against the order of injunction passed by the civil Court. However, I am convinced that this petition deserves to be dismissed on the sole ground that the implementation of the revised time schedule list dated 24-6-1986 has been stayed under the order of a competent Court and not because of any deliberate action on the part of respondent No.1. This petition, therefore, also stands, dismissed.

M . Y . H: / S-106/ K Petition dismissed.

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