P L D 2001 Azad J& K 15 (PLP)

The petitioners, through this Constitutional petition, seek quashment of route permits countersigned by respondents 1 to 4 in favour of respondents 5 to 16 as without jurisdiction.

2. Facts, as alleged by the petitioners, are that they are engaged in transport business and are running Toyota Hiace Wagon from Khuiratta Kotli‑Rawalpindi via Holar for more than a decade. It is alleged that except respondents Nos.5, 14 and 15 other respondents hail from various cities of Pakistan who have obtained the route permits from Punjab Provincial Transport Authority, Lahore between 8‑2‑2000 to 2‑3‑2000 for plying Hiace Wagons on Rawalpindi‑Kotli‑Khuiratta Road via Holar. Details of vehicles belonging to the respondents is also placed on record. According, to the petitioners, after obtaining route permits from Punjab Transport Authority, respondents obtained endorsement/countersignature oh the permits on 13‑3‑2000 from respondents 1 and

4. The petitioners allege that plying of vehicle by the respondents under the guise of endorsement is likely to cause numerous disputes and complications beside causing loss to their business. It is alleged by the petitioner that countersignature of route permit in favour of the respondents is without lawful authority and against the law regulating issuance or endorsement of route permits. It is alleged that transport authority is obliged, under law, to advertise publicly before issuance or counter signing on route permits, under the relevant provisions of law i.e. Motor Vehicles Ordinance in force. The countersignature alleged to have been made without following the process of law. It is stated that the provisions of sections 49 and 52 of Motor Vehicles Ordinance have been violated in not inviting objections from the persons already holding permits for the route. The countersignature of route permits in favour of respondents is also challenged on the ground that it violates Fundaments Right No.4(8) of the Constitution as the opportunity of fair and open competition is denied to the petitioners, in not advertising the endorsement in favour of respondents and giving an opportunity to the petitioners to object to the same as their business is effected. It is also alleged that the petitioners started plying vehicles on the route when it was totally unattractive and unremunerative and now that it has improved, the benefit thereof is being given to the respondents unduly. It is also alleged that the respondents are trying to ply their vehicle by using Bus Stand established by respondent No.6 while the petitioners who have established Wagon Stand with the due permission, and their business is effected.

3. The Transport Authority has filed comments upon the petition admitting that the permits have been issued in favour of the respondents by Punjab Provincial Transport Authority and the same have been endorsed/countersigned, ~ under section 65 of the Motor Vehicles Authority, by the Azad Kashmir Transport Authority and it is also stated that seventy Toyota Hiace are plying on the route and in case more are allowed to ply, the petitioners are likely to be affected. It is further stated that Punjab Transport Authority has been written accordingly not to issue permits for the route. The assertion made by the petitioner is denied by the respondent, that the countersignature requires advertisement.

4. The contesting respondents have objected to the maintainability of the petition on the ground that as one of the petitioners, Chaudhry Sadar Uddin, has tiled a civil suit in the Civil Court Kotli, hence the petition is not maintainable before the High Court, as the alternate remedy is being availed. It is also stated that the petitioners Nos.2, 3 and 4 have obtained route permits for their vehicles Nos. AJKD 4879 and AJKE 4755 without complying with the requirement of Motor Vehicles Ordinance and Rules. It is further stated that the Motor Vehicles Ordinance and Rules enforced in Azad Kashmir do not prohibit issuance of route permits in favour of non state subject and the route permits issued to non‑state subject have been duly endorsed by the relevant authority. It is also stated that the petitioners are not to be affected in case the petitioners ply their vehicle on the route in any way and there is no dispute on it. It is further stated that the route permits issued by Punjab Transport Authority cannot be challenged in Azad Kashmir High Court. The assertion of the petitioners that their vehicles are plying from Khuiratta‑Kotli‑Rawalpidi via Holar, is also denied and it is stated that only one vehicle is plying and is allowed to ply on this road. It is further stated that the respondents are plying vehicles on the route under the authority of law and for the convenience of local public and are doing that in exercise of the right of business. .

5. The learned Advocate for the petitioner contended that any route permit issued by the authority from outside Azad Kashmir has to be endorsed/countersigned, under section 65 of Motor Vehicles Ordinance, by the authority in Azad Kashmir and while doing so the authority is to adopt same procedure for countersigning the permit as visualised for issuance of the permits by it, in view of subsection (3) of section 65 of Motor Vehicles Ordinance. The learned Advocate elaborating his argument contended that as no provision of Motor Vehicles Ordinance is complied with while countersigning the route permits i.e. survey to be carried out regarding road passenger and transport service (under section 50‑A); to fix the number of stage carriage while granting permit (under section 50‑b); to determine the adequacy of existing passenger transport (under section 49.1‑c); to consider remunerative or unremunerative services (under section 49‑1(e); to take into account the representation (under section 49(1) etc.). The learned counsel contended that the petitioners were unable to file representation against the endorsement/countersigning on the route permit, issued by the authority from outside Azad Kashmir as the same was not advertised, hence the rights of the petitioners are adversely affected. The learned counsel further contended that as the petitioners were plying vehicle on the road under the authority after due compliance of law they are deprived of benefits, arising out of the route, by endorsement/countersigning of permits in favour of respondents and their Fundamental Right 4(8) of the Constitution is also affected. He further contended that as the law provides a particular method to do the act, it had to be done in the same way otherwise it shall be deemed as not having been done at all. He placed reliance upon PLD 1978 SC (AJ&K) 37 and

42. Learned counsel has also placed on record written arguments which elaborate the points raised during the course of arguments. In the written arguments the learned counsel has placed reliance upon case law on the point~that the failure on the part of transport authority to comply with the provisions of Motor Vehicles Ordinance, amounts to violation of law. In this behalf he relied upon 1999 PLC (C.S.) 78 besides the cases referred above. The learned counsel has also placed reliance upon 1997 CLC 1432 and 1995 SCR 196 on the point that the petitioners who were persons interested in the route have not been given right of hearing which rendered the proceedings of countersigning in favour of the respondents, as void. On the point of violation of Fundamental Right No.4(8) the learned counsel has placed reliance upon PLD 1997 SC 342, 835 and PLD 1978 SC (AJ&K) 37 and

42. As far the objection to the maintainability of the petition raised in the written statement on the ground of tiling of civil suit by one of the petitioners, it is stated in the written arguments that the suit has not been filed for cancellation of or as a matter of challenge to the countersignature on the route permits issued in favour of respondents, but it pertains to forcibly plying of the vehicles on the route for which a direction is sought against respondents 3 and 4 for restraining the respondents from forcibly plying their vehicles on the route. The learned counsel has placed reliance upon 2000 SCR 354, 1999 SCR 1881 and PLD 1976, Lahore 126 to state that a civil suit is never considered as alternate and efficacious remedy, though the suit does not relate to the matter to which the petition is filed. The learned counsel has also placed reliance upon 1993 SCR 88 on the point that the affidavit filed by the petitioner has not been controverted by the counter‑affidavit, hence the assertion made against the petitioners through the petition shall be deemed as final and correct.

6. The learned Advocate for the respondents 5 to 16 has also placed on record written arguments while representative of respondents 1 to 4 has relied upon the comments already tiled in the written arguments tiled by the contesting respondents, it is contended that the petitioner No.4 has filed a civil suit before the Civil Court and he is availing alternate remedy, on account of which the petitioner is not maintainable. The learned Advocate placed reliance upon 1975 SCMR 4489, PLD 1970 Dacca 589 and 1988 SCMR 1722. The learned counsel has also contended that as the petitioners have alternate remedy of appeal available under section 66 of the Motor Vehicles Ordinance, hence the petition, under section 44, of the Constitution is not maintainable. He relied upon PLD 1985 Karachi 1 and 1993 CLC 1101. The learned Advocate has also contended that as the other persons holding the permits to ply vehicles on the route have not been impleaded as party, hence the present petition is liable to be dismissed for non‑impleading necessary parties. 7. 1 have gone through written arguments and the d9cuments placed on record by the learned advocates for the parties besides case‑law referred by them.

8. Controversy before the Court relates to the counter signing/authentication of route permits by Azad Kashmir Transport Authority on permits issued by Punjab Transport Authority. There is no doubt that under Motor Vehicles Ordinance, 1965, as adopted in Azad Kashmir, the regional or provincial authority as the case may be, is authorised to authenticate or countersign the route permits issued by a provincial or regional transport authority from outside Azad Kashmir. This policy of law is based on reciprocal arrangement as the permits issued from Azad Kashmir Authorities are also countersigned by the counterpart authorities in other provinces. However, before countersigning/authenticating the route permits issued from outside Azad Kashmir, the authorities in Azad Kashmir have to comply with the, requirement of subsection (3) of section 65 of Motor Vehicles Ordinance which is reproduced below; (3) The provisions of this Chapter relating to the grant, cancellation and suspension of permits shall apply to the grant, cancellation and suspension of countersignatures of permits. Perusal of the above provision of law makes it abundantly clear that before countersigning on the permits issued by outside authority, the provisions of the chapter relating to the grant or otherwise of the permits have to be observed by the authority in Azad Kashmir. That. means, all that is required by the Regional or Provincial Transport Authority in Azad Kashmir while granting a route permit has to be observed while countersigning or authenticating a route permit issued by outside authority. The question is as to what requirements are to be fulfilled before a route permit is issued under the Motor Vehicles Ordinance. There is a detail of provisions of law regulating the matter, most relevant of which find place in section 48 which provides the tiling of application for permits and what should the application contain. Under section 49 the requirements are provided to be fulfilled by the Regional Transport Authority while deciding whether to grant or refuse permit and requirement to be fulfilled by an applicant when it is decided to grant a permit to him; power to restrict a number of state carriages and impose condition on state carriage permits is regulated under section 50; section 52 provides to take into consideration representation of a person already holding contract carriage. permits in the region and powers to restrict number of contract carriage and impose conditions on the contract carriage permits under section 53; and so and so forth.

9. In the case in hand while countersigning the permits issued in favour of the respondents from Punjab Provincial Authority, it appears that none of the provisions of the Ordinance is complied with as the relevant authority has only made an endorsement on the permits issued by the Punjab Transport Authority. Respondents 1 to 4 in their comments have stated that it was not necessary to undergo the process of section 49 before endorsing or countersigning a route permit neither was advertisement necessary in this behalf. It is stated that the permits are endorsed by the authority, competently. It is also stated that the authority has simply ordered endorsement of permits and has not complied with the provisions as visualized by section 65(3) of the Ordinance. The learned counsel for the petitioner while relying upon PLD 1978 SC (AJ&K) 37 and 42, besides 1999 PLC (C.S.) 78 is right to argue that if an action to be taken in a particular manner, is not taken in that manner, it shall be deemed not to have been taken at all, which in other words, means that the action so taken is without lawful authority.

10. All the above‑referred provisions are mandatory in nature as they have effect of effecting the rights of the parties, administration of the State and the convenience of the general public. The Supreme Court of Azad Kashmir in the case captioned as Umer Hayat v. Azad Government 1999 PLC (C.S.) 78 has observed that it is settled principle of law that a C mandatory provision must be obeyed strictly while directory provision may only be substantially complied with. Relevant para. from the above‑referred judgment may be reproduced as follows: On this subject we may refer to 'Maxwell's Interpretation of Statutes' which refers to the principle that 'an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if a directory enactment be obeyed or fulfilled substantially'. This principle has been upheld by the Supreme Court of Pakistan and this Court in a large number of cases. Reference to Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134 Azad Government of the State of Jammu and Kashmir and 5 others v. Kashmir Timber Corporation, Muzaffarabad and 5 others (PLD 1978 SC (AJ&K) 42) should suffice. Perusal of the relevant provisions of Motor Vehicles Ordinance i.e. sections 49, 50 and 52 respectively authorising the grant of permit, holding thorough inquiry and taking into consideration any representation 6y a person already holding contract carriage permits, are all preceded by the word "shall", which means that these provisions are mandatory in nature and I have to be strictly complied with before proceeding further when a provisions of law is likely to affect the right of a party or has the tendency of having a prejudicial effect on a person, it ordinarily shall be deemed as a mandatory provision. The provisions of section 52 of the Ordinance may be reproduced here for meeting the argument of the learned Advocate regarding hearing of permit holders: A Regional Transport Authority shall, in deciding whether to grant or refuse a contract carriage permit, have regard to the extent to which additional contract carriages may be necessary or desirable in the public interest; and shall also take into consideration any representations made by persons already holding contract carriage permits in the region or by any local authority or police authority in the region to the effect that the number of contract carriages for which permits have already been granted is sufficient for or in excess of the needs of the region or any area within the region. The words "shall also take into consideration any representation made by any person already holding contract carriage permits" imply that the authentication or countersignature on the permit issued by the authority from outside Azad Kashmir shall have to be advertised so that the people who are , already holding permits for the route may make representation against the same: It is quite clear from the language of the section that unless the matter is advertised/publicised, no representation is possible, as nobody can come to know of the countersignature on the permits issued from the authority outside Azad Kashmir. This provision has also not been complied with by l the authority while countersigning the permits issued in favour of the respondents. The point raised by the petitioners, that they are plying vehicle on the route since it was rough and unremunterative and now that it has become a bit profitable, the petitioners are deprived of the right so as to give benefit to the respondents, requires consideration by the relevant counter signing authority before doing so. This is a right of the petitioners who are plying vehicles on the route to object to the grant or countersigning on the permits and this right can be exercised only by way of a representation, which is possible only when the proposed action is publicised or advertised. It appears from perusal of the comments filed by the Transport Authority that they were cognizant of the position and had be writing to the Provincial Transport Authority Punjab. The relevant para. of the comments of the Transport Authority may be reproduced below:

11. The respondents have objected to the maintainability of the petition on the ground that a civil suit is filed by the petitioner No.4 in the Civil Court, Kotli hence, alternate remedy being availed, this petition is not maintainable. Copy of the memorandum of appeal tiled before District Judge in connection with the matter reveals and so is written by the learned Advocate for the petitioner in the written arguments that the question of countersigning of the permits issued in favour of the respondents is not challenged through the civil suit and none of the present respondents is party in that case. It is stated in the written arguments, that the petitioners have tiled civil suit for perpetual injunction and against S.H.O. Khuiratta and M.M.P.I. Kotli for restraining Sardar Bashir and Chaudhry Abdul Razzaq from forcibly plying vehicles on Khuiratta‑Kotli‑Rawalpindi Road. The challenge put forth through present petition has no nexus with the suit W pending before the Civil Courts, Kotli and there is no legal impediment in, filing of present petition. Similarly the objection that the alternate remedy of appeal under section 66 of the Ordinance is available, is equally untenable for the reason that the right of appeal provided under section 66 of the' Ordinance relates to the matter of ‑refusal, cancellation, suspension, variation of conditions, refusal to transfer of route permits to the persons succeeding to the permit holder, refusing to countersigning the permit or to renew a permit, attachment of any condition etc. In all of these matters, an appeal is provided to be made before the higher authority under the Motor Vehicles' Ordinance. The grant or countersigning of permit is not appealable before any authority under Motor Vehicles Ordinance, hence the objection to this extent is without any substance. The case‑law referred by the learned Advocate for the respondents, therefore, need not be discussed. The objection of not impleading other owners of the vehicles/permit holders as party to the case, is equally untenable as the petitioners are aggrieved of the countersigning of the permits issued only in favour of the respondents, hence the persons whose permits are rot challenged are not a necessary party.

12. In view of above, countersignature/authentication made by the respondents on the permits issued in favour of respondents 5 to 16 is without authority of law. The respondents are directed to advertise the route permits placed before them for countersigning/authentication, invite objections against them and after hearing representation against the same, decide the matter in accordance with the provisions of Motor Vehicles Ordinance discussed above. The permits already issued shall not be renewed without complying with the above direction. Copy of the order shall be sent to respondent 1 for compliance by him and for a similar direction to the regional Transport Authorities. The petition stands accepted with costs. H.B.T./15/AJ&K Petition accepted.