P L D 2000 Peshawar 14 (PLP)

SARDAR MUHAMMAD RAZA KHAN, J.‑‑This single judgment shall dispose of four writ petitions filed by numerous petitioners cited in the subject, arising in similar circumstances and out of one action taken by the Government of N.‑W.F.P. 2. 13 transporters before this Court are engaged in the business of plying contract carriages and stage carriages from Peshawar to other parts of the Province as well as the country. On this specific portion of G.T. Road, their stands were mostly located at places known as Adda Nazar Bagh and Panj Teerath. The booking offices were also located in their respective places of business.

3. For the last few years, it was felt by the public and eventually by the Government as well that because of these stands directly connected with the issue of traffic, a tremendous rush had been created which on most of the occasions, especially during the peak hours caused traffic hazards and nauseating traffic jams.

4. The Government at the initial stage issued notices to the transporters above that it intended to shift all the stands to road ways house opposite to the office of the Municipal Corporation and at the most, one kilometre from the farthest end. Consequently on 13‑11‑1998 all the stands were physically shifted to the road ways house which had become vacant due to the dismemberment of Government Transport Service.

5. Such actions, through present petitions under Article 199 of the Constitution, are challenged on the main ground that the impugned action is violative of Article 18 of the Constitution, laying impediments in the way of petitioners exercising right of independent and free business and profession. The writ petition of Haji Zar Ali Khan at Serial No.l is slightly different to the effect that his place of business belonged to him and that he could not be restrained from enjoying the usufruct of his own property while the remaining petitioners had been operating at rented places either owned by private persons or by the Municipal Committee. Other petitions than writ petition at Serial No. 1 were different to the effect that they also felt rather seriously aggrieved of the fact that the road ways house had stood transferred/entrusted to the Police Welfare Trust, the members whereof are playing havoc with the transporters as well as with the public against which there is no accountability at all. They also challenged that the public money must go to the public exchequer and not to any other institution, organization or trust. '

6. Learned counsel for the petitioners alleged with particular reference to the petition of Haji Zar Ali Khan that the Bus Stand used by him was his personal property and hence he could not have been deprived of the use thereof according to his own will and convenience. On behalf of all, it was generally argued that the shifting of their Bus Stands from their own places to the Road ways house is tantamount to denying a right of business and profession.

7. So far as the denial of Constitutional right to business and profession is concerned, we are afraid, in the instant case, it is not at all attracted because by shifting the Stand, no financial loss is likely to accrue to the petitioners. This might have been possible, had only one transporter been shifted to a place away from the reach of passengers. In situation before us, all the Bus Stands have been shifted which neither causes any loss of business nor amounts to any discrimination. The argument is not well‑founded.

8. So far as the question of personal property of Haji Zar Ali Khan is concerned, reference may be made to the N.‑W.F.P. Bus Stand and Traffic Control (Peshawar) Ordinance, 1978, section 3 whereof deals with the prohibition of establishing Bus Stand. For facility of reference section 3 is reproduced below: "No person, company or association plying stage carriages to, from or through the limits of the Municipal Committee, Peshawar, shall establish or maintain within such limits any Stand (Adda) or use any place, including a highway, road or street within the said limits, for picking up or setting down the passengers of halting the stage carriage except at the place allotted for the purpose in the bus stand." The very tenor and the language of section indicates that no stand can be established or maintained within certain specified limits without the permission of the authority. When such establishment or maintenance is subjected to a control exercised by the authority, it becomes altogether B meaningless whether such Stand is established on one's personal property or the rented property. We are convinced that personal property with reference to the establishment of Bus Stand has no significance and a Stand cannot be established beyond the provisions of section 3 above.

9. The case‑law Nazir Ahmed v. Town Committee, Sahiwal (PLD 1976 Lahore'1438), Niaz Muhammad v. Provincial Transport Authority (1989 SCMR 790), Mazhar v. The State (1996 CLC 143) and Pak Naulakha Goods Transport Company v. District Magistrate, Lahore (1988 MLD 261) are not relevant to the facts of the present case because their circumstances are totally different and shifting of carriage/bus stand, as such, is not a point in controversy.

10. Learned counsel further alleged that Haji Zar Ali Khan was given special exemption for the establishment of carriage stand in his property by the Commissioner, Peshawar Division; Peshawar vide order No.2662/RTA dated c Peshawar the 10th of August, 1989 (Annexure III, page 33), and that such .exemption could not be withdrawn. Again for facility of reference the exemption order is reproduced below:‑‑ "On the recommendation of Deputy Commissioner, Peshawar and to thin out concentration of vehicles on main road,

1. Ejaz Rahim, in exercise of powers conferred upon me under section 10 of the N.‑W.1,.P. Bus Stand and Traffic Control (Peshawar) Ordinance, 1979 read with section 3 of the said Ordinance, do hereby allow Haji Zar Ali Khan to park/operate Air‑Conditioned Vehicles (coaches) from his premises located beyond Alzar Hotel, opposite Firdaus Cinema, Peshawar." The above exemption is issued under section 10 of Ordinance VII of 1978 rear' with section 3. thereof. The very issuance thereof under section 3 means that even if one has his personal property, it requires the permission of the authority to run the same as carriage stand. The benefit of exemption under section 10 1 cannot be derived by the petitioner or petitioners because the very exemption presupposes the idea of a restriction. Unless there is some restriction of a general nature, no question of exemption arises. Moreover, the restriction as well as the D power to grant exemption brings the phenomenon of carriage stand to the status of a licence which may or may not be granted by the Authority. Any exemption towards the grant of licence can, therefore, be withdrawn at any time because even the licence, as such, can be withdrawn by the authority at any time. The exemption claimed cannot. therefore, be benefited from. 11 . Next is the argument of learned counsel for writ petitioners at Serial Nos.2 to

4. Their main grievance was, that trey had become helpless and desperate from the conduct of Police Authorities who are not restricting themselves to the role of maintaining law and order but are fully professing to be the owners of the Roadways house and are conducting themselves accordingly by becoming a nuisance for the public as well as for the transporters. It was for this purpose that some private Organization known by the name of Police Welfare Trust, was also arrayed as respondents.

12. The comments in this behalf were asked from the Government as well as the Police Welfare Trust/Department. From the comments of both the parties, it appeared that the matter is sufficiently clandestine between the parties. Both I have categorically stated that the Roadways house has never been transferred to Police Welfare Trust but in one of the comments, it is admitted that the income is received by the Trust.

13. This act of the Government is utterly mala fide, unlawful and without jurisdiction being in total violation of Articles 118 and 119 of the Constitution which provide that all revenues received by the Provincial Government would go to a Provincial Consolidated Fund, the custody and the disposal whereof shall be regulated by act of the Provincial Assembly. Apart from this glaring Constitutional violation the underhand method of the Provincial Government is an extreme example of discrimination among its own departments. We therefore, hold that the income of the carriage/bus stand at the Roadways house: shall be the income of Provincial Government alone. If this condition is not fulfilled then we shall be constrained to hold that the very shifting of carriage/bus stand from different areas was not with the object of thinning out the traffic but was with the unfair object of dishing out the income to a private Trust by violating the Constitution and also by making discrimination. In that case the transporters shall have the right to return to their original places.

14. While parting, we may remark that the shifting of bus stand, if bona I fide and if to control the traffic etc., is even not violative of Rule 253 of West IF Pakistan Motor Vehicles Rules, 1969.

15. Consequently, the writ petitions are hereby dismissed, so far as the question of shifting is concerned, but are hereby accepted to the effect that the handing over of the Roadways house and the income thereof to Police Welfare (rust or any other private Organization, is void, unlawful, without jurisdiction and in titter violation of Articles 118 and 119 of the Constitution. If such mala fide conduct is continued and the provincial fund is allowed to be enjoyed by any such Organization, it would be deemed that the shifting of carriage stands was mala fide and all the transporters shall be entitled to revert back to their original places. H.B.T./443/P Order accordingly.