PLR 2023 Lahore 3

Other citation:

2021 LHC 1686 (https://sys.lhc.gov.pk/appjudgments/2021LHC1686.pdf)

PLD 2023 Lahore 572 (https://www.pakistanlawsite.com/Login/MainPage)

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

Muhammad Ali Ghori and another—Petitioners

versus

Government of the Punjab through its Secretary, Ministry of Transport and Communication, Civil Secretariat Punjab, Lahore and others—Respondents

Writ Petition No.8317 of 2020, decided on 22^nd February, 2021.

HEADNOTES

(a) Interpretation of statues —

— Delegated legislation — Scope — Rules are subordinate and delegated legislation deriving authority and legal cover from the provisions of the main statute and cannot override the provisions of the statute — To determine the vires of delegated legislation, Court has to examine whether such delegated legislation was beyond the power granted by the enabling legislation and whether such delegated legislation was consistent with the parent statute — Delegated legislation can only be struck down if it was directly repugnant to general purpose of the statute which authorized it or was repugnant to well established principle of statute. [Para. No. 7]

قواعد ماتحت اور تفویض کردہ قانون سازی ہیں جو مرکزی قانون کی دفعات سے اختیار اور قانونی احاطہ حاصل کرتے ہیں اور یہ قانون کی دفعات کو اوور رائڈ نہیں کرسکتے ہیں۔ تفویض کردہ قانون سازی کے دائرہ کار کا تعین کرنے کے لیے، عدالت کو یہ جانچنا ہوگا کہ آیا اس طرح کی تفویض کردہ قانون سازی عطا کردہ طاقت سے باہر تھی اور آیا اس طرح کی تفویض کردہ قانون سازی بنیادی قانون کے مطابق تھی۔تفویض کردہ قانون سازی کو صرف اس صورت میں ختم کیا جاسکتا ہے جب یہ براہ راست اس قانون کے عمومی مقصد کے خلاف ہو جس نے اسے اختیار دیا ہو یا قانون کے قائم کردہ اصول کے خلاف ہو۔

(b) Appeal —

— Right of appeal can be conferred in a clear manner by some enactment or statute or the rules having the sanctity of some law. [Para. No. 6]

اپیل کا حق کسی قانون یا کسی قانون کی حرمت والے قواعد کے ذریعہ واضح انداز میں دیا جاسکتا ہے۔

Bilal Ahmad Qazi and Nadeem Iqbal Chaudhry for Petitioners.

Jam Abdul Maalik, Assistant Advocate General for Respondents.

Nawazish Ali Peerzada and Muhammad Aslam Khan Dhukkar, Legal Advisors for Respondent No.4.

Date of hearing: 22^nd February, 2021.

JUDGMENT

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through instant petition, petitioners have challenged the vires of Rules 96 and 267(1) of the Punjab Motor Vehicle Rules, 1969 (“the Rules of 1969”), being without sanction of law and assailed order dated 26.11.2020, passed by the Chairman, Punjab Provincial Transport Authority, Lahore/respondent No.3, whereby respondent No.6’s appeal against minutes of meeting dated 23.09.2020, referring matter qua grant of sanction to run a “D” class bus stand in the name and style of Ahmed Talha Travels to respondent No.1, was accepted and aforesaid order was set aside with direction to Chairman, District Regional Transport Authority, Bahawalnagar to decide the matter as per law.

2.    Concise history of the case is that initially respondent No.6 was allowed to maintain stand under license No.22/97, which was later on cancelled on 29.12.2008, by respondent No.4. In appeal before respondent No.3, matter was remanded to respondent No.4 vide order dated 09.05.2009, however, previous decision was upheld vide order dated 10.08.2009. Appeal was also dismissed by respondent No.3 vide order dated 24.06.2010. Subsequently, respondent No.6 filed W.P.No.4091 of 2010/BWP, which was later on withdrawn as said respondent approached Member Board of Revenue, whereby status quo order was issued. Meanwhile, petitioner No.1 filed W.P.No.5481 of 2010/BWP, which was accepted vide order dated 17.02.2011 and proceedings before Member Board of Revenue were quashed. Resultantly, operation of stand of respondent No.6 was closed on 23.02.2011 and an FIR was also lodged. Thereafter, respondent No.6 filed another application for sanction of stand and petitioner No.1 agitated the matter by filing W.P.No.1178 of 2011/BWP, which was dismissed being premature, vide order dated 04.03.2011, however, respondents were directed to look into grievance of petitioner at the time of decision on the request of respondent No.6. In I.C.A No.129 of 2011/BWP, the Hon’ble Division Bench sought report regarding status of application of respondent No.6 and it was apprised that the Authority rejected the application for establishment of D-Class bus stand at the proposed site.

Afterwards, on 04.12.2019, respondent No.6 filed application for establishment of D-Class stand in the name & style of Ahmad & Talha Travels, followed by another application dated 23.01.2020, upon which reports/NOCs were called from concerned departments and ultimately on 15.07.2020, Additional Deputy Commissioner (Revenue), forwarded the report of Assistant Commissioner (Chishtian) for consideration and further necessary action, subject to clarification about zoning policy & fulfillment of all codal/legal procedural formalities by the applicant, as prescribed in the Motor Vehicle Ordinance, 1965 and the Rules of 1969. Thereafter, on application of petitioner No.1 dated 16.07.2020, matter was re-opened and Assistant Commissioner submitted another comprehensive report dated 27.08.2020 wherein he, inter-alia, observed that the site in question has been placed in negative zone/prohibited zone due to congestion issues, hence, not recommended for the establishment of D-Class bus stand. The matter was placed in the meeting of District Regional Transport Authority, Bahawalnagar held on 18.09.2020, whereby the matter was agreed to be kept pending as matter was sub judice before High Court, with further direction to refer the matter to the Secretary Transport, Government of the Punjab for decision as per law, vide minutes of meeting dated 23.09.2020. Against the said decision, appeal of respondent No.6 was accepted by respondent No.3, vide order dated 26.11.2020, whereby decision/minutes of meeting was set-aside, directing Chairman, District Regional Transport Authority, Bahawalnagar, to decide the matter as per law. Hence, instant petition.

3.    Learned counsel for petitioners submit that after introduction of Rule 253-A in the Rules of 1969, the District Regional Transport Authority, Bahawalnagar prepared a proposal for zoning in various Tehsils of the District, marking prohibited zones but unfortunately matter for sanctioning of zone in district Bahawalnagar for establishment of C & D-Class bus stands could not be finalized even after lapse of about 12-years, which caused confusion and chaos giving rise to multiple litigation. They primarily attacked Rules 96 and 267 of the Rules of 1969, with the contention that provision of appeal under said provisions of law in the matter of grant of license is beyond the scope of main statute i.e. West Pakistan Motor Vehicle Ordinance, 1965 (“the Ordinance of 1965”). Add that there is no provision of appeal in matter of granting license under Section 80 of the Ordinance of 1965, therefore, Rule 96 cannot be made applicable to cases of grant license etc. Further submit that under Section 46 of the Ordinance of 1965, the government has authority to constitute Provincial and Regional Transport Authorities by Notification in the official gazette, thus, authorizing Chairman, Provincial Transport Authority to hear appeals under Rule 96 is a meaningless provision and renders aforesaid Rules as ultra vires the main statute.

4.    Conversely, learned Law Officer, assisted by learned counsel for respondent No.4, submits that the Ordinance of 1965 is consisted upon 10-Chapters and at the end of every Chapter, the Government has been empowered to frame rules for carrying into effect the provisions of that particular Chapter, therefore, the Rules of 1969 were promulgated in exercise of powers conferred by Section 22, 43, 68, 69, 70, 74, 96 and 120 of the Ordinance of 1965. Further submits that Chapter 7 deals with control of traffic and contains Section 75 to 96 and latter section empowers government to frame rules and Rule 267(1) deals with establishment, cancellation and other condition of the stands and parking, thus, no illegality has been committed. Argues that Chairman, District Regional Transport Authority and the Regional Transport Authority are separate entities. Contends that presumption of truth is attached as to legislative competence and legitimacy of statutes and interpretation upholding the validity of statute is always preferred and adopted. Contends that petitioner has no locus standi and is not an aggrieved person within the contemplation of Article 199(1)(a) of the Constitution of the Islamic Republic of Pakistan, 1973, to file titled petition as whole controversy revolves around respondents No.4, 5 & 6. Maintains that even otherwise, petitioners have alternate remedy of appeal against impugned order under the provisions of the Ordinance of 1965 and the Rules of 1969, hence, on this score also, instant petition is not maintainable.

5.    Arguments heard. Available record perused.

6.    Petitioners have challenged Rules 96 and 267(1) of the Rules of 1969, mainly with the contention that appeal provided therein in the matter of sanctioning the establishment of a stand or revoking or modifying an order permitting the establishment of a stand, is beyond the scope of the Ordinance of 1965. For ease of reference, provisions of Rule 96 and 267(1) are reproduced hereunder:-

“96. Appeal against orders of Regional Transport Authority.– The Authority (hereinafter referred to as the Appellate Authority) to hear and decide an appeal against the orders of a Regional Transport Authority and Claims Tribunal contemplated by clauses (a), (b), (c), (d), (e), (f) and (g) of section 66 and section 67-E shall be the Chairman, Provincial Transport Authority, West Pakistan.”

“267. Appellate Authority.— (1) Any person aggrieved by an order of the Regional Transport Authority sanctioning the establishment of a stand or revoking or modifying an order permitting the establishment of a stand, may, within thirty days of the receipt of the order, appeal, to the appellate authority as prescribed in rule 96, whose orders thereon shall be final and conclusive.”

Ordinarily, remedy and forum of appeal and rule making power are specifically provided in all statutes, which encompass all the matters given in the said statute. However, the scheme of the Ordinance of 1965 is altogether different and is a manual of different kinds of businesses/ transport activities. It consists upon 9 Chapters, each Chapter deals with a distinct class of business. Chapter Nos. II, III, IV, VI, VII & IX specifically contain provision relating to rule making power. Likewise, Chapter III & IV provide remedy of Appeals. The appeals provided in the Ordinance are specific to respective Chapters. The matter “Determination of Parking Places and halting stations” has been elaborated under Section 80 of the Ordinance of 1965, which comes under Chapter VII (Control of Traffic) and Section 96 of the Ordinance (Chapter VII) authorizes the government to make rules for the purpose of carrying into effect the provisions of Chapter VII. Specifically, Section 96(2)(f) is authorizing Government to make rules in the matter of the maintenance and management of parking places and stands and the fees, if any, which may be charged for their use. For this purpose, Chapter VIII (Halting of Motor Vehicles in Public Places: Control of Stands) has been created in the Rules of 1969 and Rule 267(1) is about appeal against orders that are passed under that Chapter and are consistent with other provisions of the Rules of 1969. Rule 267(1) does not deal with the kind of order(s) which are expressly provided in the parent statute/Ordinance of 1965, thus, it cannot be held ultra vires the parent Statute. It is equally well-settled that right of appeal can be conferred in a clear manner by some enactment or Statute or the Rules having the sanctity of some law. As discussed above, the Rules of 1969 have been framed on the basis authorization provided in the Ordinance of 1965, therefore, these have been validly framed. Reference can be made to Syed Masroor Shah and others v. The State (PLD 2005 Supreme Court 173) and Waqas Amjad and others v. Additional Sessions Judge and others (PLD 2019 Lahore 111).

7.    Undeniably, Rules are subordinate and delegated legislation deriving authority and legal cover from the provisions of the main statute and cannot override the provisions of the Statute. To determine the vires of delegated legislation, this Court has to examine whether such delegated legislation was beyond the power granted by the enabling legislation and whether such delegated legislation was consistent with the parent statute. Rule of interpretation is that delegated legislation can only be struck down if it was directly repugnant to general purpose of the statute which authorized it or was repugnant to well established principle of statute. In instant case, Rule 267(1) has been framed granting right of appeal in respect of matters enumerated in Chapter VIII of the Rules of 1969, which have been framed by deriving authority from Section 96 of the Ordinance of 1965, the parent statute. Thus, the power of delegated legislation bestowed by the Ordinance of 1965 was rightly exercised while framing Rules of 1969, especially the Rules impugned through instant constitutional petition.

8.    In view of the above discussion, there is nothing on record to suggest that the impugned Rules were framed without any sanction of law rather these have validly been framed by exercising the authority of delegated legislation conferred by the parent statute.

9.    In the instant case, respondent No.5, while exercising appellate jurisdiction, has remitted the matter to respondent No.3 to decide the matter qua sanction of “D” class bus stand as per law, thus, no illegality or legal infirmity has been committed. Petitioners are at liberty to produce their defence before respondent No.3, who is required to decide the matter as per law, through a well-reasoned speaking order, after hearing petitioners and all concerned, preferably within a period of thirty days from the date of receipt of certified copy of this order.

10. Resultantly, instant petition, being devoid of any force, is hereby dismissed. No order as to costs.

Petition dismissed