1988 PLP 261 (MLD)

This order will dispose of the prayer for interim relief made in the Constitutional petition filed by Pak Naulakha Goods Transport Company and others, petitioners Nos. 1 to 54, challenging the minutes of the meeting dated 23 6-1988 of the Public Administration and its corrigenda issued on 29-6-1988.

2. The petitioners claim to be goods forwarding agencies carrying on their business on Circular Road between the Crown Bus Adda and Ik Moria Pul for the last many years. On 23-1-1973 the District Magistrate, Lahore, by an order issued under section 33-A(m) of the Police Act, V of 1861, prohibited the entry of trucks from 6-00 a.m. to 8-00 p.m. from 1st October to 31st March and from 6.00 a.m. to 9.00 p.m. from 1st April to 30th September on certain roads within the municipal limits of the Lahore Municipal Corporation. The prohibition inter alia applied to the Circular Road from Chowk Bhati Gate to G.T. Road via Lohari and Akbari Gates and to the Grand Truck Road from Darogawala to the Crossing of the Lady Wellingdon Hospital. To this prohibition, the petitioners have no objection. On 23-6-1988, at a meeting of the District Administration, presided over by the Additional Deputy Commissioner (General), City, Lahore, certain decisions were taken, to stop illegal operations of the goods forwarding agencies on Circular Road on permanent basis. Amongst various steps formulated, it was also inter alia decided that during the permissible hours at night when the trucks would be passing on the road starting from the Fort to the Railway Station, the goods forwarding agencies would be strictly prohibited from loading and unloading their trucks on the roadside between the IK Moria Pul and the Crown Bus Adda. The petitioners object to this decision, as it is intended to directly obstruct the carrying on their business. The petitioners submit that they would not encroach upon the Circular Road by storing their goods on the roadside, but would take their goods into their shops/godowns and that they should be permitted to load and unload their goods on the road, as the said road does not have any Katcha pavement. In this connection the petitioners have also filed the affidavit of Muhammad Aslam Dar, partner of New Ashraf Goods Forwarding Agency, Lahore, enclosing minutes of the meeting of the Lahore Municipal Corporation held with the representatives of the goods forwarding agencies on 25-5-1981 regarding the removal of encroachments on the Circular Road, where it was decided that during permissible hours the goods forwarding agencies would use the roadside up to eight feet for loading and unloading of their trucks, but traffic congestion would not be caused and that no goods would be placed on both sides of the dividing line and that the goods forwarding agencies would keep the LMC lands in front of their offices clear from all the encroachments from 6.00 a.m. to 5.00 p.m.

3. On behalf of the respondents it is submitted that all the petitioners are unlicensed goods forwarding agencies and thus they have no right to file the present petition. It is further submitted that the minutes of the meeting of the District Administration dated 23-6-1988 and the corrigenda dated 29-6-1988 do not amount to any orders passed, which can be challenged, and, therefore, the present petition is incompetent. It is contended that the petitioners have a right to use the Circular Road for the movements of their trucks, but not for loading and unloading of their goods or any business thereon. It is also contended that the minutes of the meeting of the Lahore Municipal Corporation dated 25-5-1981 were never approved by the House or acted upon. In this connection a supporting affidavit has been filed. It is lastly contended that the petitioners should apply to the Regional Transport Authority for licences and also for plots in regularised truck stands, where they can properly do their business.

4. In reply to the submissions of the learned Advocate-General, it is submitted on behalf of the petitioners that initially fifty-five plots were allotted at the truck stands in 1969 and another twenty-eight in 1980, that out of them only thirty-four were granted licences by the Regional Transport Authority and they also did not apply for renewal thereafter, after the expiry of their period of three years. It is submitted that all the goods forwarding agencies which are located in the regular truck stands are all unlicensed presently. In this connection it is submitted that under Rule 254(3)(a) of the West Pakistan Motor Vehicles Rules, 1969, a goods forwarding agent has to have in his control not less than thirty public carrier's permits, out of which at least rive permits are to be held in his own name, and since this condition the Pakistan Goods Transporters Association have found it difficult to fulfil and requested for amendment, the Punjab Government has moved the Ministry of Communication, Government of Pakistan, for the amendment of this Rule, with the result that none of the members of the Pakistan Goods Transporters Association had applied for the renewal of their licences.

5. I have heard the arguments of the learned counsel for the petitioners and the respondents. The following points stand admitted on both -,ides:-- (i) That the Lahore Municipal Corporation maintains the roads and is responsible for the removal of encroachments. (ii) That the District Magistrate under section 33-A(m) of the Police Act, 1861, can alone prohibit the movement of vehicles at such times and such places which he may consider necessary for the public safety and convenience. (iii) That all the goods forwarding agencies in the Punjab are presently unlicensed. (iv) That there is no law which bars a goods forwarding agency which has not taken out a licence from the Regional Transport Authority from conducting its business. (v) That the minutes of the meeting of the Lahore Municipal Corporation held on 25-5-1981 with the representatives of the goods . forwarding agencies regarding the removal of the encroachments on Circular Road, even if it was not ratified by the House or by the Mayor, it is admitted that the Corporation did not intimate to the petitioners in writing that the said decision had not been approved and would not be acted upon. (vi) That the present petitioners alone are being discriminated by their business being banned on only a portion of the Circular Road, whilst the goods forwarding agencies carrying on business on other parts of the Circular Road or on other roads are not being dislodged. The case of the petitioners that through the various policies formulated by the District Administration, in its meeting held on 23-6-1988, the petitioners are forcibly being dislodged from doing their business, which executive action is not supported by any law, which should be so, is not without substance. Likewise, the argument of the learned Advocate-General that the petitioners should remove their business to recognised truck stands, so that their activities do not encroach upon the Circular Road so as to cause traffic jams, has much to commend itself. However, there is no section in the Motor Vehicles Ordinance by which a goods forwarding agency can be compelled to transfer its business from one place to another or to close it down, so as to give any ancillary powers to the District Administration to take any steps as would indirectly dislodge it from its business premises or disable it from carrying on its trade. Any executive action, not supported by law, carried out on grounds of necessity or in public interest, to achieve a result which legally is not available, is an evil which all good Governments must avoid, for the action is not only unlawful, but in breach of the good faith which compels all governmental agencies to honour all semblances of law. Without going on the record as having given any finding in the matter, as the main writ petition has yet to come up for motion hearing, I would order that till 24-9-1988 the petitioners shall not be prevented from loading/unloading their trucks during permitted hours at night on the Circular Road within eight feet of their shops, provided that the petitioners shall keep the road clear from all encroachments and shall straightaway take the goods directly from the trucks into their shops/godowns and vice versa and no goods shall remain parked or stored on the road or within the precincts of the Circular Road Garden, and in case any goods are found so lying or stored on the road, they shall be liable to removal. Meanwhile, the Regional Transport Authority should take steps to allot proper plots to the petitioners in regular truck stands, so that they can take steps to place their business on a safer and regular footing.

6. The main writ petition should be listed in motion before any other Bench on 24-9-1988 (and not on 6-8-1988 as earlier ordered). AA./P-42/L