2007 PLP 521 (CLC)

SAJJAD ALI SHAH, J.

By listed application at Serial No.1, the plaintiff has prayed the defendant No.1 be directed not to restrain the mini buses of Route No.D-3 from carrying services as per their valid route permit granted by defendant No.3. The learned counsel for the plaintiff has invited my attention to Annexure "A-1" at page 35 of this file which is a route permit issued in favour of the plaintiff whereby defendant No.3 (Regional Transport Authority) had permitted the plaintiff to carry mini bus service of Route D-3 in various areas as specified therein including Star Gate Terminal Building, Old Area Airport. It was contended by the learned counsel that at the one hand the defendant No.1 has restrained the plaintiff from carrying mini bus service in accordance with the valid route permit granted by the competent authority and on the other hand the defendant No.1 without any route permit on the same route has allowed service of 12 seaters. It was, further, contended by the learned counsel that the sole authority to grant route permit vests in defendant No.3 and defendant No.1 has no authority whatsoever to stop the services of the plaintiff's mini buses at Route No.D-3 on any ground whatsoever. The learned counsel has submitted that in a similar controversy whereby service of mini buses was not allowed in the Cantonment Area a Petition bearing No.D-19 of 1998 (Syed Tanvir Ali v. Malin Cantonment Board) was filed and vide order, copy whereof if placed at page 39 of this file a Division Bench of this Court observed as follows:-- "(8) Mr. Faisal Khalid attempted to meet this argument by contending that a permit granted by the respondent No.3 was applicable only within the areas of Province and Cantonments did not fall within such areas. We are afraid there is no force in this contention either inasmuch as it has been clearly laid down by the Honourable Supreme Court in Pakistan v. Province of Punjab PLD 1975 SC 37, that there is nothing in Constitution or any law to show that a Cantonment area is not be included within the territorial limits of a Province in which it is situate. (9) For the foregoing reasons we are constrained to allow this petition holding that as long as the petitioner possesses valid route permit granted by the respondent No.4, the respondents Nos.1 and 2 cannot require him to obtain a separate licence for allowing entry of his vehicles in the Cantonment area." The respondents being aggrieved with the order of this Court in the aforesaid petition preferred Civil Petition No.607/K of 2002 before the Honourable Supreme Court which was dismissed upholding the aforesaid judgment of this Court. The learned counsel for the plaintiff, in view of the controversy set at naught by this Court as well as the Honourable Supreme Court has contended that the defendant No. 1 has no authority to restrain the plaintiff from carrying bus service in accordance with the route permit validly granted by defendant No.3. Learned Advocate-General Sindh, appearing for defendants Nos.2, 3 and 4 has also supported the case of the plaintiff by contending that defendant No.1 has no authority whatsoever in view of a valid route permit granted by defendant No.3 to require the plaintiff to obtain a separate licence for allowing entry of the vehicle to Old Area Airport or to restrain such entry. It was contended that such restriction amounts to invasion over the authority of Province. On the other hand, learned counsel for defendant No.1 has contended that the licence subject-matter of this suit was granted to the plaintiff by defendant No.3 for operating Mini Bus Service to the Airport area and since Airport has been shifted to Jinnah Terminal, therefore, the licence itself has become infructuous. The learned counsel has further contended that sub-rule (3) of Rule 94 of the Civil Aviation Authority Rules, 1994, provides that "no person shall operate for hire at the aerodrome any tax cab, or Omni Bus or other vehicle carrying passengers except with the permission of the Director-General or Manager of the Civil Aviation Authority, the learned counsel lastly submitted that the plaintiff was suggested alternate route i.e. Jinnah Terminal in order to maintain safely and security which suggestion was accepted by the plaintiff in a meeting with Camp Commandant HQ CAA and therefore, his application is liable to be rejected. I have heard the contentions of the learned counsel for the respective parties and have gone through the record placed before me. In view of the judgment of this Court as well as the Honourable Supreme Court, referred to above. Mr. Faisal Kamal, learned counsel for defendant No.1 was not in a position to question the Authority of defendant No.3 to issue route permits for operating coach service throughout the Province and that all the Cantonment areas are included in the territorial limits of a Province in which they are situated, in view of this position of the contention of the learned counsel that after the shifting of airport from Old Airport Area to Jinnah Terminal the licence has became infructuous is also not acceptable as it is not for defendant No.1 to question the purpose of a valid route permit nor it has any authority to judge the purpose of licence or its feasibility by assuming the functions of the Regional Transport Authority. The plaintiff despite shifting of the airport to Jinnah Terminal if feels that carrying of coach service to Old Airport area is still feasible cannot be restrained from carrying such services till he holds valid route permit. The second argument as advanced by the learned counsel for defendant No.1 is destructive of the first as the defendant No.1 itself is offering the plaintiff to run the coach services to Jinnah Terminal, New Airport, i.e. aerodrome, therefore, they cannot be heard to say that the coach services of the plaintiffs are restrained as they do not hold any permission to operate mini bus service to aerodrome as required under sub-rule (3) of Rule 94 of the Civil Aviation Authority Rules, 1994. Even otherwise, the limits of the aerodrome cannot be extended to exclude the operation of the route in question. "Aerodrome" as defined in sub-rule (2) of Rule 91 of the said Rules includes all facilities, building and other structure, access roads and pedestrian area provided for the use of the passenger intending to travel or having travelled by air, however in my view the term "access roads" as used in sub-rule (2) of Rule 91 cannot be read in isolation to extend its application to all the roads which lead to aerodrome but is to be read in conjunction with the terms "Pedestrian Area" provided for the use of the passenger intending to travel or having traveled by air "keeping in mind that the purpose behind the rule is the safety and security of the aerodrome and such purpose can be achieved to restrict the meaning of term "access road" to those portion of access roads where the access of pedestrians as well as all the vehicles as enumerated in the above Rule is restricted for the purpose of security. However, in the present ease the defendant No.1 has singled out the vehicles of the plaintiff and is allowing the access to the rest of the vehicles as enumerated in the said rule which is not only against the spirit of the rule referred to above but is discriminatory. The reference of this Rule even otherwise appears to be not only uncalled for but mala fide for the reason that the defendant No.1 itself has permitted the service of the vehicles/mini buses of Route D-3 to the roads leading to the new aerodrome i.e. Jinnah Terminal and further defendant No.1 has, in obedience to the order, dated 13-2-2006, filed a statement reflecting that on the said route the service of Metro Bus, Radio Cabs, Yellow Cabs, Shuttle Service are available. As to that last argument of Mr. Kamal that the defendant No.1 have suggested or provided an alternate route i.e. to Jinnah Terminal instead of the route subject-matter of this case it is suffice to observe that the defendant No.1 has no authority whatsoever to assume the duties of the Regional Transport Authority to allow permission to a route other than the one allowed by defendant No.3. In the circumstances, I am convinced that the plaintiff has made out a very strong case for the grant of relief prayed for. Consequently, I allow, this application and direct the defendant No.1 not to restrain the mini buses of the plaintiff carrying passenger services on Route "D-3" in accordance with their route permit.

2. In view of order, passed above, this application under Order XVIII, rule 18, C.P.C. has become infructuous, as such is hereby dismissed. H.B.T./K-2/K Application allowed.