KARACHI, May 24: The Sindh High Court has held that as long as a transporter possesses a valid route permit granted by the provincial transport authority, the Malir Cantonment Board authorities cannot ask him to obtain a separate licence for allowing entry of his vehicles into the cantonment area.

The order was passed by a division bench, consisting of Justice Sabihuddin Ahmed and Justice Ali Aslam Jaferi, in a petition filed by Syed Tanvir Ali, a resident of Army Housing Scheme-III, Malir Cantt.

The petitioner, represented by counsel Shoukat Ali Shaikh, was operating Askari Coach service from Malir Cantt to Karachi Cantt railway station under the route permit issued by the provincial transport authority.

By a letter dated August 21, 1997, issued by the Station Headquarters, Malir Cantt, he was given a permit to run the service from Malir Cantt upon certain conditions, including payment of permit fee, payable to the Station Headquarters. This permit, however, was cancelled by a subsequent letter dated March 12, 1998.

Moreover, through a public notice appearing in the press on December 21, 1997 the respondent No 1 (Executive Officer, Malir Cantt Board) invited applications from interested transporters, possessing valid route permit issued by the Regional Transport Authority to apply for grant of permit for plying buses and coaches the designated route upon security deposit of Rs200,000.

The petitioner protested against inviting such bids for the purpose of allowing transporters to operate their vehicles. Thereafter, by a letter dated February 18, 1998, the petitioner was informed by the office of the Station Headquarters, Malir Cantt, that it had been decided to award the contract for operating vehicles on the prescribed route through competitive bids and the offer submitted by Al Noor Special Coach Service (respondent No 7) being lowest was approved by the Garrison Commander. Therefore, the permission granted to the petitioner earlier had been withdrawn.

Simultaneous directions were also issued to the Military Police Unit, Malir Cantt, to stop the vehicles owned by the petitioner.

The petitioner had challenged the action of the respondents contending that once he had been granted a route permit to ply coach service by the respondent No 4, the aforesaid respondents had no jurisdiction to impose further conditions and restrain the entry of such vehicles into the cantonment area.

In the course of hearing, Khalid Daudpota had relied upon section 282 (4) of the Cantonment Act of 1924, which enabled the Cantonment Board to make bylaws in respect of several matters, including regulations or prohibition of any discrepancies of traffic in the streets.

The court had asked the counsel to show whether any particulars bylaws had been validly made by the respondent No 1 enabling imposition of the discretion in question. Faisal Khalid candidly stated that no such bylaws had been framed. Nevertheless, he referred to section 117 of the Act which described the discretionary functions of the Board.

He had contended that discretionary functions as distinguished from duties spelt out in section 116 indicated that it was optional for the Board to undertake or not to undertake any measure in the performance of this function and failure to allow the petitioner’s vehicles to enter into the Board limits ought to be treated as exercise of a valid option.

The court was of the view that this contention was patently untenable. In the first place the relevant statutory provisions indicated that the Board might in its discretion choose to construct a tramway or facilities or other means of locomotion such as roads etc., but the power to restrict the entry of person or vehicles was altogether different and must be clearly spelt out in the statute.

The court also held that the Board might have discretion not to perform a particular function, but for restricting the movement of persons or vehicles a conscious decision had to be taken, which must conform to the law and the rights guaranteed by the constitution.

The court also examined section 210 of the Act which required that a large number of occupations could not be carried out in a cantonment area without obtaining a licence from the Board and the Board might levy licence fee with prior sanction of the government. But this sanction did not speak of the vocation of transportation of commercial vehicles, the order said.

AAG, on the other hand, supported the case of the petitioner by contending that the power to grant a route permit only vested in the respondent No 4 under the Motor Vehicle Ordinance and any restriction imposed by the respondent No 1 would amount to an invasion over the authority of the respondent No 4.

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 a province, and cantonments did not fall within such areas.

The court found no force in this contention as it had been clearly laid down by the Supreme Court in Pakistan Vs Province of Punjab that there was nothing in any constitution or any law to show that a cantonment area was not to be included within the territorial limits of a province in which it was situated.

The court held that as long as the petitioner possessed a valid route permit granted by the respondent No 4 (the provincial transport authority), the respondent Nos 1 & 2 could not require him to obtain a separate licence for allowing entry of his vehicles into the Cantonment area.