Shaheen Travel Service etc Vs Province of Punjab etc

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT.

Writ Petition No.28002/2021.

Shaheen Travel Service, etc.

Versus Province of the Punjab, etc.

Date of Hearing 18.09.2026.

Petitioners by M/s Arshad Nazir Mirza, Kumail Ali Qureshi and Rana Shahmeer Ahmad Khan, Advocates.

Respondents Ch. Tanvir Akhtar, Additional Advocate General, Punjab.

M/s Kashif Habib Sherikh, Hammad-ul- Hassan, Advocates for respondent No.7.

Mr. Khalid Iqbal, Law Officer, for the respondent department.

AHMAD NADEEM ARSHAD, J:- Through this petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have called-in-question the vires of the notifications dated 02.01.2006 and 20.03.2010, and the order dated 07.04.2021 passed by respondent No. 3, whereby the petitioners’ request for de-notification of the subject routes was declined. The petitioners have prayed as under :-

“In view of the foregoing, it is therefore most respectfully prayed that while accepting the instant writ petition the impugned notifications dated 01.02.2006 and dated 20.03.2010 issued by Respondent No. 1 may kindly be declared to be ultra vires to the 1973 Constitution and 1965 Ordinance and the same be declared to of no legal effect.

It is further prayed that the impugned order dated 07.04.2021 passed by the Respondent No. 3 may kindly be declared struck down being patently illegal, against the law, without reason, result of undue haste and the same be set aside.

In the alternative it is prayed that the Respondent No. 1 be directed to de-notify the subject routes from Lahore Railway Station to Kamonki, Lahore Railway Station Lahore to Muridke and Lahore Railway Station to Sharaqpur Sharif as specified routes.

Any other relief to which the Petitioners are found entitled may also be granted.”

2.Brief facts of the case, as discernible from the record, are that petitioner No. 1 is a registered partnership concern engaged in the transport business, while petitioner No. 2 is a resident of Tehsil Kamonki, District Gujranwala, who frequently travels to Lahore and other cities for business purposes. The subject routes, namely Lahore Railway Station to Kamonki, Lahore Railway Station to Muridke, and Lahore Railway Station to Sharaqpur Sharif, were declared as "specified routes" by the Government of the Punjab through Notification dated 02.01.2006 (the first impugned notification) issued under Section 45-A of the Provincial Motor Vehicles Ordinance, 1965 (the "1965 Ordinance"). Consequently, only High Occupancy Vehicles (HOVs) meeting specific criteria were permitted to operate on these routes. Subsequently, through Notification dated 20.03.2010 (the second impugned notification), certain powers of the Regional Transport Authority (RTA) and Provincial Transport Authority (PTA) were delegated to respondent No. 4, Punjab Transport Company (PTC), which assumed control over the specified routes.

3.The petitioners contend that despite the subject routes being notified as specified routes, no transport service has been operational on these routes since January 2019, causing immense hardship to the travelling public, including petitioner No. 2. The petitioners further assert

that they have a fundamental right to operate on these routes under Articles 18 and 25 of the Constitution, and the impugned notifications are ultra vires the parent Statute and the Constitution. The petitioners also challenge the jurisdiction of respondent No.4 to regulate inter-district routes, arguing that its mandate is confined to the notified area of District Lahore.

4.Conversely, the respondents have filed their respective reports and para-wise comments, defending the impugned notifications and the order passed by respondent No.3. Respondent Nos.1 to 3 (Province of Punjab and Transport Authorities) submit that the petitioners have filed this petition with malafide intention after their earlier Constitutional petition (W.P. No.2926/2020) was disposed of with directions to decide their representation. For facility of reference, the order dated 28.01.2020 reads as under:-

“ After arguing the matter at some length, learned counsel for the petitioners states that the petitioners would be satisfied if a direction is issued to the Secretary Transport, Government of the Punjab, Lahore (respondent No.1) to decide their application (Annexure-D).

2.The request, being tenable, learned Law Officer concurs with the same. Consequently, this petition is disposed of with the direction to the said respondent to ensure decision of the aforesaid application by himself or through any other authority competent in that regard, in accordance with law, relevant rules, policies applicable thereto after hearing the petitioner through a speaking order according to section 24-A of the General Clauses Act, 1897 expeditiously preferably within four weeks from the receipt of certified copy of this order under intimation to this Court through Deputy Registrar (Judl.). Learned Law Officer shall ensure the compliance of this order.”

They assert that the representation was decided through a speaking order dated 07.04.2021, and the petitioners, instead of approaching the relevant forum (Respondent No.4), filed the instant petition. They further submit that the Government has decided to enhance the jurisdiction of the Lahore Transport Company (now Punjab Transport Company-PTC) to the whole of the Province of Punjab, and a notification in this regard is under process.

5.Respondent No.4 has filed a detailed report, asserting that it is a non-statutory body regulated through its memorandum and articles of association. It was initially authorized to operate within the territorial jurisdiction of City District Government, Lahore, and certain powers were delegated to it vide Notification dated 20.03.2010. The respondent No.4 submits that the subject routes originate from Railway Station Lahore, which falls within District Lahore, and hence, it has the jurisdiction to regulate urban transport over these routes. It is further stated that the respondents currently are undertaking several projects, including the induction of eco-friendly buses, and have an elaborate system for issuing route permits to private parties who fulfill the notified conditions. Their further stance taken therein is that the petitioners intend to get an exception in violation of the notified policy by plying Low Occupancy Vehicles (LOVs) on routes specified for HOVs.

6.Respondent No. 5 (Punjab Masstransit Authority-PMA) has also filed its report and para-wise comments, stating that it is an independent statutory body constituted under the Punjab Masstransit Authority Act, 2015, and is empowered to operate mass transit systems in

the Province of Punjab. The PMA submits that it is operating a number of Air-Conditioned buses from Railway Station Lahore on subsidized rates, providing comprehensive coverage to the travelling public. It is argued that the petitioners have no fundamental right to operate on specific routes, and the petition is liable to be dismissed.

7.I have heard the learned counsel for the parties at length and perused the record with their able assistance.

8.The core issue before this Court is whether the impugned notifications and the order passed by respondent No.3 are sustainable in the eyes of law, and whether the petitioners have been illegally deprived of their right to operate on the subject routes. It is an admitted fact that the subject routes were declared as "specified routes" under Section 45-A of the 1965 Ordinance vide notification dated 02.01.2006. The purpose of Section 45-A, as evident from its language, is to provide an efficient, reliable, dignified, safe, integrated, economical, and properly coordinated road transport system. The Government is empowered to declare a route as a specified route and determine the technical specifications of the stage carriages that shall ply on it. In the instant case, the subject routes were notified for HOVs only. The petitioners, who own LOVs, have challenged this notification primarily on the ground that it violates their fundamental rights under Articles 18 and 25 of the Constitution.

9.Article 18 of the Constitution guarantees the right to enter upon any lawful profession or occupation and to conduct any lawful trade

or business. However, this right is subject to regulation by the State. Said Article reads as under:-

“18. Freedom of trade, business or profession.-Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business:

Provided that nothing in this Article shall prevent-

(a)the regulation of any trade or profession by a licensing system; or

(b)the regulation of trade, commerce or industry in the interest of free competition therein; or

(c)the carrying on, by the Federal Government or a Provincial Government. or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons.”

The proviso to Article 18(b) of the Constitution empowers the Government to regulate any trade, commerce, or industry in the interest of free competition. Similarly, Article 18(c) thereof allows the Government to exclude other persons from carrying on a trade or business if it is carrying on that trade or business itself.

In the instant case, the Government has not completely excluded private operators; rather, it has regulated the routes by specifying that only HOVs can operate on them. Respondent No.4 has offered private operators to ply their vehicles on these routes, subject to fulfilling the codal formalities and stipulated conditions. The petitioners have not applied for a route permit for HOVs; instead, they insist on plying their LOVs, which is against the notified policy.

10.It will not be out of place to examine the scope and ambit of Sections 72-A and 72-B of the Motor Vehicles Ordinance, 1965, as these provisions form the bedrock of the regulatory framework under challenge. The relevant provisions are reproduced hereunder for facility of reference:-

“72-A. Company.- (1) The Government may, in the notified area, establish an Urban Transport Company registered under the Companies Ordinance 1984 (XLVII of 1984) for the provision of urban transport and related services.

(2)A director or an employee of the Company shall be deemed as a public servant within the meaning of section 21 of the Pakistan Penal Code 1860 (XLV of 1860).

(3)The Company shall advise the Government on all public policy matters of urban transport and related services.

72-B. Powers of the Company.- (1) The Company may, in the notified area—

(a)plan, align, classify and re-classify a route;

(b)specify, operate and enforce the urban transport on the routes; and

(c)plan, build, and maintain infrastructures for the urban transport and related services.

(2)If the Company undertakes to operate urban transport on a route in the notified area that caters to the needs of passengers on the route then notwithstanding anything contained in this Ordinance, the Provincial Transport Authority or a Regional Transport Authority shall not:

(a)issue route permit for such route to any public service vehicle as the Company may notify to the Authority; or

(b)perform any function or exercise any power in relation to a matter specifically assigned to the Company.”

Section 72-A of the Ordinance empowers the Government to establish a Company for the purposes of operating and regulating urban transport within a notified area, and to vest in such Company the powers and

functions necessary to achieve that object. Pursuant thereto, the Lahore Transport Company (now Punjab Transport Company) was brought into existence and entrusted with the mandate of providing efficient, reliable and coordinated urban transport services. The petitioners' grievance essentially stems from the exercise of these statutory powers, yet a plain reading of Section 72-A of the Ordinance reveals that the Legislature, in its wisdom, deliberately created a specialized corporate entity to address the deficiencies of the ordinary permit regime, particularly in the thickly populated urban centers where unregulated competition had led to congestion, pollution and poor service quality. The provision is therefore not merely enabling in nature but embodies a policy of regulated competition in the larger public interest, and the courts are ordinarily loath to interfere with such policy choices unless they are shown to be manifestly arbitrary or ultra vires the parent statute.

11.Section 72-B of the Ordinance, in turn, delineates the powers of the Company, including the authority to plan, align, classify and re-classify routes, to specify, operate and enforce urban transport on such routes, and to plan, build and maintain infrastructure for urban transport and related services. Crucially, sub-section (2) of Section 72-B of the Ordinance provides that where the Company undertakes to operate urban transport on a route in the notified area that caters to the needs of passengers, the Provincial Transport Authority or a Regional Transport Authority shall not issue route permits for such route to any public service vehicle as the Company may notify, nor perform any function or exercise any power in relation to a matter specifically assigned to the

Company. This provision creates a statutory exclusivity in favour of the Company in respect of routes it undertakes to operate, and it is this exclusivity that the petitioners assail as being violative of Article 18 of the Constitution. However, it must be borne in mind that the exclusivity contemplated by Section 72-B(2) of the Ordinance is not an absolute or permanent bar on private operators; it is conditional upon the Company actually undertaking to operate on the route and catering to the needs of the passengers. The Company has placed on record material to show that it is actively operating buses on various routes, including those originating from Railway Station Lahore, and that the PMA is supplementing these efforts through its own fleet. In these circumstances, the statutory scheme cannot be said to be unreasonable or discriminatory, as it seeks to ensure a minimum standard of service on routes where the public interest so demands. The petitioners remain at liberty to apply for route permits in respect of routes or categories of vehicles for which they are eligible, and the mere fact that they are unable to ply their LOVs on routes specified for HOVs does not amount to a denial of their right to do business; it is merely a regulation of the manner in which that business may be carried on.

12.The argument of the petitioners that the impugned notifications are ultra vires the 1965 Ordinance is also not tenable.

Section 45-A of the 1965 Ordinance expressly empowers the Government to declare specified routes and determine the qualifications and conditions for the grant of permits. The first impugned notification was issued in exercise of these powers. Similarly, the second impugned

notification delegated certain powers to the PTC under Section 72-E of the 1965 Ordinance. The delegation of powers is within the framework of the law, and the PTC has been authorized to regulate urban transport in the notified area. The fact that the PTC’s jurisdiction has now been extended to the whole of Punjab vide notification dated 26.12.2022 further strengthens its authority to regulate the subject routes.

13.The petitioners’ reliance on the judgment of the Supreme Court in "Arshad Mehmood versus Government of the Punjab" (PLD 2005 SC 193) is inapplicable. In the said case, the franchise system was held to be ultra vires Articles 18 and 25 of the Constitution. However, in the present case, the system of specified routes under Section 45-A is not a franchise system. It is a regulatory mechanism to ensure efficient and safe transport services. The PTC is not a private monopoly; it is a government-owned company tasked with regulating urban transport. The petitioners have the opportunity to apply for route permits and compete with other operators, subject to the notified conditions.

14.The petitioners’ contention that no transport service has been operational on the subject routes since January 2019 is also not supported by the record. The PTC has placed on record sufficient material to show that it is operating buses on various routes, including those originating from Railway Station Lahore. The PMA is also operating AC buses on subsidized rates, providing connectivity to the travelling public. The petitioners have not been able to substantiate their claim that the public is deprived of transport facilities on the subject routes. Furthermore, the earlier Constitutional petition filed by the

petitioners (W.P. No.2926/2020) was disposed of by this Court with a direction to Respondent No.2 to decide the petitioners’ application.

Pursuant to that order, the Secretary Transport/respondent No. 2 heard the petitioners and passed a well-reasoned speaking order dated 07.04.2021. The said order clearly states that the mandate to designate, re-designate, classify, re-classify, align, and plan routes stands delegated to the PTC, and the petitioners are required to submit their application to the PTC according to the stipulated conditions. The petitioners, instead of complying with the order, filed the instant petition, which is not maintainable.

15.The petitioners have also failed to demonstrate that the impugned order dated 07.04.2021 suffers from any legal infirmity. The order was passed after hearing the petitioners and is based on the relevant provisions of the law and the notified policy. The petitioners have not pointed-out any jurisdictional error or violation of law in the said order.

The impugned order is, therefore, sustainable in the eyes of law.

16.The petitioners’ plea that the subject routes are inter-district routes and fall beyond the jurisdiction of respondent No.4 is also without merit. The subject routes originate from Railway Station Lahore, which is within District Lahore. The PTC has the jurisdiction to regulate urban transport on routes originating from within its notified area. Moreover, the PTC’s jurisdiction has now been extended to the whole of Punjab, which further validates its authority over the subject routes.

17.In view of the above discussion, it is clear that the impugned notifications and the order passed by respondent No.3 are lawful and within the framework of the 1965 Ordinance and the Constitution. The petitioners have not been able to establish any violation of their fundamental rights. The petition is, therefore, devoid of merit and is liable to be dismissed. Accordingly, this writ petition is dismissed with no order as to costs.

(AHMAD NADEEM ARSHAD)

JUDGE

Approved for reporting.

JUDGE

Gull*