1994 CLC 2318 (PLP)

3. According to the petitioner as alleged in the writ petition he approached respondent No. 9 for providing him the said Helicopter. According to the decision of the Federal Government conveyed through letter dated 29‑8‑1993 (Annex. 'C') with the written statement of respondent No. 5 it appears that permission was sought by respondent No. 9 to induct the said Helicopter for the election Campaign of Muslim League (Nawaz Group) and the Care‑Taker Prime Minister allowed the same. It is also in the written statement of respondent No. 9 that the said respondent who initially acquired the Helicopter on wet lease basis had been operating it for a period of six months i.e. August 1993 to March 1994. According to respondent No. 9 as disclosed in the written statement a contract was entered into between the said respondent and the petitioner under which the said Aircraft was chartered to the petitioner for a period of six months on the basis of which the petitioner had been in the use of the same since its entry into Pakistan till 5‑3‑1994. Though this written statement was filed on 28‑7‑1994 by respondent No. 9 no averment has been made that there was any further agreement between the petitioner and respondent No. 9 for chartering or hiring this Aircraft for any further period. Through letter dated 6‑2‑1994 respondent No. 9 was intimated by the Civil Aviation Authority that the Helicopter in dispute was brought to Pakistan for wet lease operations and since the same was completing the time period of six months during current month, therefore, it should ensure its departure from the country on or before the expiry period. Respondent No. 9 was directed to intimate the departure programe. Subsequently a reminder was also issued to respondent No. 9 on 8‑2‑1994 expressly pointing out to it that the lease period of Helicopter in dispute would not exceed six months after which it was required to register the Aircraft in Pakistan. According to the averment made in the written statement filed by respondent No. 9 on 12‑2‑1994 it applied for re‑validation of import authorization of Helicopter. He admitted that through letter dated 20‑3‑1994 the Ministry of Commerce declined the required permission which order has also been challenged in this writ petition.

4. Since the said Helicopter was being operated by the Russian Crew members who were granted visa by. the Federal Government for staying in Pakistan for the said purpose during the wet lease period of six months as such as a consequence of expiry of the said period it was directed through letter dated 23‑2‑1994 that the said Russian Crew Members should be asked to leave Pakistan immediately. A request was made by respondent No. 9 for extension of visa of the said Russian crew members up to 15‑4‑1994 because the training schedule of Pakistani crew was still not complete which was planned for eight weeks. This request was also declined.

5. This writ petition was filed on 10‑4‑1994 in which order as regards rejection of the application of respondent No. 9 for revalidation of the temporary import licence of Helicopter in question as also direction for Russian crew members to leave the country after the expiry of the period of six months have also been brought under challenge. During the pendency of the writ petition an interim order was passed restraining the respondents from sending the Russian are members to Russia but the said order was subsequently withdrawn as the Interior Ministry was not ready to extend their visa for staying in Pakistan. The said Russian crew members left Pakistan. During the pendency of this writ petition it was disclosed by respondent No. 9 that though the permission to bring Helicopter in dispute on wet lease basis was granted in relation to a chartered licence held by the said respondent which was valid up to December, 1993 he was also issued on 26‑3‑1994 an Air‑line licence to operate Airline Service in Pakistan. An attempt was made to make out a case that though the previous wet lease period under the permission, for temporary import had expired but according to Import Policy 1993‑94 Helicopter could now be imported permanently under the said Airline Licence and there was no requirement to have any import licence and the only requirement was to pay the custom duty and other taxes. This Court through interim order dated 19‑4‑1994 directed the Custom authorities to assess the custom duty and other taxes. The Custom authorities made assessment of the said dues which was to the tune of Rs.30,49,912 or above. This amount was deposited by respondent No.

9. According to the statement of Syed Javaid Iqbal made on behalf of respondent No. 9 the said amount was arranged by the petitioner which was paid to respondent No. 9 as advance rent for the use on hire basis of the said helicopter. According to learned counsel for respondent No.9 an application was made on behalf of respondent No. 9 to Civil Aviation Authority for registration of the Aircraft to operate the same on permanent basis in April 1994. It has been admitted by respondent No. 0 in the written statement that the Helicopter in question has a registered take off weight of 1300(1 K.Gs which is above the weight category of its valid charter licence. According to respondent No. 9 in view of this, second application was made on 29‑5‑1994 for registration of this Aircraft alongwith the attached documents as an Aircraft having registered take off weight of 13000 K.Gs. It has also been admitted in the written statement by the said respondent that through letter dated 6‑4‑1994 the petitioner was intimated to complete the following formalities:‑‑ "(a) permission must be obtained from Ministry of Defence; (b) the Helicopter shall have to be registered in Pakistan and the flight crew shall be required to be in possession of a valid ALTP with appropriate type rating endorsement. " It has been stated in the written statement by respondent No. 9 that it had already applied for N.O.C. from Ministry of Defence. It has also been stated that an application to C.A.A. Pakistan for registration of the Helicopter in Pakistan had also been made. As regards deregistration of the Aircraft from the country of registry i.e. Russia it has been stated that inspire of its best effort the Helicopter in que9tion had not been deregistered by C.A:A. Russia which is solely in their jurisdiction and which has to be directly communicated by it to C.A.A. Pakistan. In relation to requirement of .proper endorsement of Flight Crew and Engineers it was stated that C.A.A, Pakistan can issue waivers, concessions or type rating on any, Aircraft type available on the Pakistani register only and till then the regulatory responsibility for flight operation rests with the Russian Civil Aviation Authority and all checks etc. on the Helicopter were to be carried out by Russian Licence Holders under supervision. of C.A.A. Pakistan. It was stated that respondent No. 9 could apply for all endorsements etc. only once the‑ Aircraft was registered in Pakistan to meet with the above statutory requirement. It has been prayed in the written statement by respondent No. 9 that a suitable and appropriate order may be passed by this Court for the ends of justice.

6. The first and foremost question which arises for determination in this Constitutional petition is whether the petitioner has locus standi to maintain the writ petition. Under Article 199 of the Constitution a petition can only be made by an aggrieved person. A person cannot be held to be an aggrieved person unless he had a right in the performance of statutory functions by a person performing functions in connection with the affairs of the Federation or the Province in respect of any right which he may have in relation to the performance of the said functions. Keeping in view this broad principle the case of the petitioner is to be examined. It is clear from the facts as stated above that the petitioner in his own right has no nexus with the grant of original permission for bringing Helicopter in dispute in Pakistan on wet lease basis which was originally allowed to be brought by respondent No. 9 under a chartered licence issued to it for spray for six months. If the petitioner had entered into any contract as alleged by respondent No. 9 in the written statement to charter the said Helicopter for six months i.e. the maximum period of lease and on the application of respondent No. 9 it was allowed to use the said Helicopter for election campaign of Muslim League (Nawaz Group) for a period of six months, in my view, the same did not create any right in the petitioner against the Civil Aviation Authority or Commerce Ministry to ask them to allow him to operate the Helicopter even after the expiry of the said wet lease period or to revalidate the licence issued to respondent No.

9. The contract between the petitioner and respondent No. 9 as stated above as per admission of respondent No. 9 was for a' period of six months. It has neither been averred in the writ petition nor any document has been placed on record that any of respondents Nos. 1 to 8 gave any understanding/promise for revalidation of the licence or extension of wet lease period of six months for which period originally the Helicopter was i permitted to be brought in Pakistan by respondent No.

9. Since the petitioner took on rent the said Helicopter only for six months, therefore, it can safely be presumed that he knew that respondent No. 9 had no right or authority under the e said licence to keep this Helicopter in Pakistan beyond six months. Respondent No. 9 was intimated well in time through letters dated 6‑2‑1994 and 8‑2‑1994 as noted above that it would not be allowed to continue keeping the Helicopter in Pakistan after the expiry of the wet lease period of six months and he was directed to make arrangements for sending back the Aircraft well in time. The matter as regards revalidation of the licence, import of the Helicopter on permanent basis under Airline licence issued on 26‑3‑1994, its registration in Pakistan after deregistration in Russia and the crew members who had to fly this aircraft is exclusively between Civil Aviation Authority, Commerce Ministry on the one hand and respondent 'No. 9 on the other and the petitioner and respondents Nos. 1 to 8 on no known principle of law owe any duty or statutory obligation to the petitioner in this respect. It may be mentioned here that during the pendency of this writ petition through order dated 17‑5‑1994 the said Airline Licence dated 26‑3‑1994 of respondent No. 9 was also cancelled. This order was challenged by respondent No. 9 in W.P. ' No. 9369/94 which has been accepted on the statement made by learned counsel for the Federal Government that the same was violative of principles of natural justice as a consequence of this the position which emerges is that the question of registration, deregistratign of Helicopter in question and the matter t regarding its operation by a crew holding ALPT licence is pending determination before the relevant authorities between respondent No. 9 and the said authorities.

7. Learned counsel for the petitioner when asked to satisfy the Court as to how the petitioner can be held to be holding a right to compel respondents Nos. 1 to 8 to accede to his requests for revalidation of the licence in favour of respondent No. 9 and to allow him to use the Helicopter for travelling purposes has referred to the following reported judgments:‑‑ (1) Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223). (2) Ardeshir Cowasjee, Karachi v. Messrs Multiline Associates, Karachi (PLD 1993 SC 237). (3) Muhammad Afzal and others v. Government of Pakistan and others (1987 SCMR 2078). (4) Dr. Abdur Rauf and others v. Sh. Muhammad Iqbal and others (1991 SCMR 483). (5) Suleman Mala v. Karachi Building Control Authority and 3 others (1990 CLC 490). (6) Ch. Riaz Ahmad Yazdani v. The Federation of Pakistan through Attorney‑General of Pakistan, Lahore and others (1990 CLC 1406). It was argued that since the petitioner has paid a huge amount of more than Rs.30,49,912 to respondent No. 9 as advance rent for hiring Helicopter for his travelling purposes, therefore, he had acquired financial interest in the Helicopter, as such, could maintain the writ petition.

8. I am afraid the argument is wholly misconceived. In these reported judgments it has been held that the right considered for maintaining a proceeding in writ jurisdiction need not necessarily be a right in the strict juristic sense and it was enough if the petitioner could show that he had a personal interest in the performance of legal duty which had not been performed in a manner required by law. The rule laid down in Mian Fazal Din's case (supra) PLD 1969 SC 223, has been reaffirmed in the other reported judgments on which reliance has been placed. In Mian Fazal Din's case the facts were that the Lahore Improvement Trust framed a scheme in which a particular site was reserved for use of the public as a market place which induced a person to purchase a piece of land just opposite to the proposed marked place in the hope of opening a shop there. Subsequently the Scheme was altered and the site was re‑allocated for some other purpose which had the effect of depriving the said person of the market who constructed a shop towards the said market. It was held that the said person was an aggrieved person because he was induced by the Lahore Improvement Trust to purchase the said plot as an understanding was given to him that there would be a market. In all these cases there was a statutory promise/representation made to public that a particular site had been reserved for construction of market which induced persons from public to spend money and purchase a plot with the intention to construct a shop and it was held to be a statutory promise and if a person had acted upon it and spent money he could not be deprived of such facility. In the present case there is no promise/understanding under any statute or rules given to the petitioner in any manner by respondents Nos. 1 to 8 that he would be allowed to operate the Helicopter which induced him to pay advance rent to respondent No. 9 for hiring it that too during the pendency of the writ petition when he certainly knew that the revalidation of the licence of respondent No. 9 had already been declined and the matter as regards completion of formalities of deregistration of Helicopter in Russia, its registration in Pakistan on the application of respondent No. 9 was still pending disposal by the concerned authorities without which the Aircraft could not legally be operated or flown. Even if the said application of the respondent for registration is allowed, the Aircraft can only be flown by a crew holding licence issued by the Civil Aviation Authority. As is clear from the prayer made in the writ petition as also the written statement filed by respondent No. 9 the Pakistani crew had not yet completed its training under the Russian crew members when the Russian members were sent back to Russia. It was not denied that though Col. (Retd.) Muhammad Zarif whom the petitioner wants to fly the Aircraft has not been issued the required licence by the Civil Aviation Authority. In these circumstances it is not possible to hold that the petitioner has any locus standi to compel respondents Nos. 1 to 8 as they owe no statutory obligation to the petitioner to allow him to use and fly she Aircraft. The matters regarding its registration and grant of licence to crew to fly the same are settled between respondent No. 9 and the Civil Aviation Authority. No case has been made out that the payment of advance rent made during the pendency of the writ petition was on any undertaking or promise given to the petitioner by respondents Nos. 1 to 8 to revalidate the licence of respondent No. 9 or register the same without any further delay. It may significantly be mentioned here which fact I have particularly noticed that neither in the written statement filed in this writ petition by respondent No. 9 nor in W.P. No. 9369/94 separately filed by it, it has been prayed that the order dated 20‑3‑1994 declining its request for revalidation of the licence and extension of wet lease period should be set aside. Respondent No. 9 in the said writ petition has only challenged the order dated 17‑5‑1994 through which his Airline licence dated 26‑3‑1994 was cancelled and has not sought any direction at present against Civil Aviation Authority for registration of the Aircraft.

9. Learned counsel for respondent No. 9 during arguments submitted that once the said order dated 17‑5‑1994 is set aside he would take up the matter with Civil Aviation Authorities as regards the registration of the Aircraft and at present it could not be raised in the said writ petition as certain formalities regarding deregistration of the Aircraft in Russia had to take place without which at present the same cannot be registered in Pakistan. In view of this situation by no stretch of reason it can be held that the petitioner who does not have any right directly as regards registration and revalidation of the licence D could claim better rights than respondent No. 9 who of its own showing has not at present even prayed for registration of the Aircraft and there is no question of p its uge by the petitioner as it cannot operate without the registration.

10. The prayers made by the petitioner can otherwise not be granted under the law. It may be prominently mentioned here that under Article 199 this Court has been conferred power to make a direction to a person performing functions in connection with the affairs of Federation or the Province as the case may be to do what the law requires him to do. As observed above the petitioner cannot be allowed to operate the Aircraft unless it is registered and in the matter of registration and other formalities he has got no concern or right. Since admittedly the Aircraft in question has not yet been deregistered in Russia, therefore, under Rule 2(1)(Ixxxvi) of the Civil Aviation Rules, 1978, it is a foreign Aircraft. Under rule 14 of the said Rules it cannot be registered in Pakistan. Respondent No. 9 has disclosed in the written statement that he has applied for deregistration of the Aircraft in Russia and the intimation to that effect has not yet been given by the Civil Aviation Authority in Russia to Civil Aviation Authority in Pakistan, therefore, there is a bar against registration of the Aircraft in Pakistan. Rule 7 of the said Rules provides that an application for registration of an Aircraft may be made by or on behalf of‑‑ "(a) where the aircraft is not an aircraft referred to in clause (b) or clause (c) the owner of the aircraft; (b) where the aircraft not being an aircraft referred to in clause (c) is the subject of a contract of hire or charter (including a hire‑purchase agreement the effect of which is that the control, maintenance and operation of the aircraft is, or is to be, vested in a party to the contract, that party; or (c) where the aircraft, being the subject of a hire‑purchase agreement, is also the subject of a further contract of hire or charter between the purchaser under the hire‑purchase agreement and another person the effect of which is that the control, maintenance and operation of the aircraft is, or is to be, vested in that other person, that person. " There is no document placed on the record either by the petitioner or by respondent No. 9 as to whether the application has been made by respondent No. 9 for registration of the Aircraft in question as owner of the same or under clause (b). $e that as it may, from this rule it is clear that persons of three categories mentioned in this rule could make an application for registration of the Aircraft. It is not the case of the petitioner in the writ petition as there is no averment to that effect that the Aircraft in question was subject of hire‑purchase agreement between respondent No. 9 and its foreign owner and the same is also subject of a further contract of hire or charter between the purchaser under the hire purchase agreement i.e. respondent No. 9 and the petitioner the effect of which was that the control, maintenance and operation of the Aircraft was or was to be vested in the petitioner. It is also not the case of the petitioner that he was the applicant before the Civil Aviation Authorities for registration of the Aircraft on the basis of any such contract. This being so, it is a case where the petitioner can be said to have approached this Court in relation to right and grievance, if any, of respondent No. 9 which as per rule laid down in judgment reported as Ch. Jalal‑ud‑Din and another v. Settlement Commissioner, Lahore and others (1968 SCMR 995) cannot be allowed.

11. As regards the request for allowing Col. (Retd.) Muhammad Zarif to fly the Aircraft it may be mentioned here again that admittedly he is not holder of a licence. Merely because according to the showing of the petitioner he had otherwise experience of flying such like Aircraft was no ground to give a direction in violation of law as this Court is empowered to make direction for compliance with the requirement of law. The weight of this Aircraft is admittedly in excess of 5700 K.Gs., therefore, under Rule 55(2) of Civil Aviation Rules, 1978 he is otherwise debarred from flying or attempt to fly the Aircraft unless he was holder of a licence granted or rendered valid under the law of the country in which the aircraft was registered. Since at present the registration of the Aircraft in Russia has not been cancelled i.e. the same has not been deregistered, therefore, this rule is fully applicable to Col. (Retd.) Muhammad Zarif also. Nothing has been placed on record that he is holding any, licence granted to him by Russian authorities where the Aircraft stands registered. Even after the registration of the Aircraft in Pakistan under Rule 56(1)(a)(iv) of the said Rules he shall have to obtain a senior commercial pilot licence authorising him to act as pilot in command of an aircraft being of the weight more than 5700 K.Gs. and for the aircraft below such weight he has to obtain commercial pilot licence. In view of the provisions of Civil Aviation Rules the prayers made by the petitioner for allowing him to use the aircraft cannot be granted, for, if granted the same would be violative of the law.

12. The factual position which ultimately emerges from the circumstances of this case is that the position and status of the petitioner is nothing more than a mere customer of respondent No. 9 who wants to charter the Helicopter in question for which he made payment of rent in advance during the pendency of this writ petition. He should wait .till respondent No. 9 succeeds in getting the said Aircraft deregistered in Russia and get the same registered in Pakistan so that he was in a position to provide the said Aircraft to him. At present respondent No. 9 is not legally in a position to' perform the said agreement as he is not capable of making the Aircraft available for operation due to the abovementioned provisions of the Civil Aviation Rules. This being so, for this reason also the petitioner has no locus standi to maintain the writ petition in I particular when there was no averment in the writ petition much-less proof that he was induced by any of the functionaries of respondents Nos. 1 to 8‑to make payment of advance rent.

13. It may also be pointed out here that vide order dated 21‑7‑1994 the Court permitted respondent No. 9 to join the petitioner as a co‑petitioner and both of them were permitted to file joint amended writ petition. Respondent No. 9 did not opt to join the petitioner in the writ petition as no joint amended writ petition has been filed. This is indicative of the fact that so far as respondent No. 9 was concerned it was no longer interested in the revalidation of the temporary import licence and in getting order dated 20‑3‑1994 set aside, for, if he was so interested he would have availed the opportunity of joining the petitioner as co‑petitioner. If respondent No. 9 through whom the petitioner is claiming right to use the Helicopter under an arrangement through which he wanted to charter the same, he has no locus standi to prosecute the case of respondent No. 9.

14. For the foregoing reasons the writ petition has no merits, therefore, the same is accordingly dismissed with no order as to costs. M.B.A./M‑1762/L Petition dismissed.