IN THE SUPREME COURT OF PAKISTAN 
 
      (Appellate Jurisdiction) 
 
Present 
Mr. Justice Iftikhar Muhammad Chaudhry 
Mr. Justice Rana Bhagwandas 
Mr. Justice Syed Deedar Hussain Shah 
Mr. Justice Hamid Ali Mirza 
Mr. Justice Sardar Muhammad Raza Khan 
Mr. Justice Faqir Muhammad Khokhar 
Mr. Justice Tassadduq Hussain Jillani 
 
CIVIL APPEALS No. 224 TO 227 OF 2003 & 
CONSTITUTION PETITION No. 18 OF 2004 
A/W  C.M.As.No. 1383, 2376 & 2604 OF 2004.   
 
(On appeal from the judgments/orders dated 
19.04.01, 10.12.02 and 20.01.03 passed by Lahore 
High Court Lahore in Writ Petitions No. 660/2000, 
19239/02, 2418/01 & 692/03) 
 
CA No. 224/2003 & CMA No. 2604/04. 
Arshad Mehmood & others.  
  
… 
… 
Appellants.  
 
Versus 
The Government of Punjab  
through Secretary, Transport  
Civil Secretariat, Lahore & others.  
… 
… 
Respondents.  
 
 
For the appellants  
: 
Mr. Muhammad Akram Sheikh Sr. ASC.  
Mr. M. A. Zaidi, AOR.  
 
For the respondents.  
: 
Syed  Shabbar Raza Rizvi AG(Punjab)  
a/w Mrs. Afshan Ghazanfar AAG Punjab.  
Mr. Maqbool Illahi Malik Sr. ASC. 
 
For the applicant  
 
: 
Ch: Muhammad Anwar Khan, AOR/ASC 
(in CMA No. 2604/04)   
 
CA No. 225 OF 2003.  
 
Muhammad Younas, etc. 
 
 
… 
… 
Appellants.   
Versus 
Government of Punjab etc.  
 
… 
… 
Respondents.   
 
For the appellants.  
: 
Mr.A. K. Dogar Sr. ASC.   
 
For the respondents.  
: 
Syed Shabbar Raza Rizvi AG (Pb.) 
a/w Mrs. Afshan Ghazanfar AAG(Pb). 
Syed Ali Zafar ASC  
Ch. Muhammad Akram AOR.   
CA.224 of 2003, etc. 
2
CA No. 226 OF 2003.  
 
 
 
 
Malik Asghar, etc.  
 
 
… 
… 
Appellants.  
Versus 
Government of Punjab etc.  
 
… 
… 
Respondents.  
    
 
For the appellants.  
: 
Mr. Nasir Saeed Sheikh Sr. ASC.   
 
For the respondents.  
: 
Syed Shabbar Raza Rizvi AG (Pb.) 
a/w Mrs. Afshan Ghazanfar AAG(Pb). 
Mr. Aftab Gul, ASC.  
Mr. Arshad Ali Ch: AOR.  
 
CA No. 227/2003 & CMA No. 1383/2004.  
Mukhtar Ahmed & others.   
 
… 
… 
Appellants. 
Versus.  
Secretary District Regional  
Transport Authority, Faisalabad.   
… 
… 
Respondents.  
 
For the appellants/  
: 
Mr.Tariq Mehmood  ASC.   
Applicants   
 
 
Maher Khan Malik, AOR.  
 
For the respondents.  
: 
Syed Shabbar Raza Rizvi AG (Pb.) 
a/w Mrs. Afshan Ghazanfar AAG(Pb). 
Ch: Muhammad Akram AOR.  
 
CONST. PETITION  NO. 18/2004.  
 
Javed Akhtar & others.  
 
  
… 
… 
Petitioners.  
Versus.  
Province of Punjab & others. 
 
… 
… 
Respondents.  
 
For the petitioners.  
: 
Mr. Habib-ul-Wahab-ul- Khairi Sr. ASC. 
Maher Khan Malik, AOR.    
 
For the respondents.  
: 
NR.  
 
CIVIL MISC. APPLICATION NO. 2370 OF 2004 
Mukhtar Ahmed & others.   
 
… 
… 
Appellants. 
Versus.  
Secretary District Regional  
Transport Authority, Faisalabad.   
… 
… 
Respondents. 
 
For the applicant  
 
: 
Nemo. 
 
For the respondents   
: 
Syed Shabbar Raza Rizvi AG (Pb.) 
a/w Mrs. Afshan Ghazanfar AAG(Pb). 
Ch: Muhammad Akram AOR. 
 
Dates of hearing. 
 
: 
25.10.2004   to 29.10.2004. 
 
 
 
 
………………… 
CA.224 of 2003, etc. 
3
JUDGMENT 
 
 
IFTIKHAR MUHAMMAD CHAUDHRY, J. – In above noted 
appeals, judgments of the Lahore High Court, Lahore, details whereof are 
mentioned in above title, have been challenged in pursuance whereof 
Section 69-A of the West Pakistan Motor Vehicles Ordinance 1965 [herein 
after referred to as ‘the Ordinance’] as amended by the Province of Punjab 
has been held valid piece of legislation. 
2. 
Listed petition under Article 184(3) of the Constitution of Islamic 
Republic of Pakistan [herein after referred to as ‘the Constitution’] has 
been filed by invoking original jurisdiction of this Court to challenge 
Section 69-A of the Ordinance, independently. Whereas Civil Misc. 
Applications No. 1383/2004 and 2604/2004 have been moved by the 
Transports who got the franchise rights with regard to route permits 
mentioned therein.  
3. 
As common question of law and facts have been raised in these 
matters, therefore, they are being disposed of by means of instant judgment.  
4. 
Facts of each case need not be narrated in details as common 
question raised in all of them is whether Section 69-A of the Ordinance, 
inserted by the Government of Punjab  is contrary to the fundamental rights 
of the appellants, enshrined in Article 18 of the Constitution because in 
pursuance thereof, appellants have been restrained/ousted completely from 
the trade/ business of transport, which they were carrying on against valid 
route permits issued by competent authority under the provisions of the 
Ordinance for the last many years and in which for it they had made huge 
investment for purchase of vehicles i.e. wagons, suzukies, etc. The franchise 
of routes on which they were plying their stage carriages have been given 
to the private respondents in pursuance of the scheme of Section 69-A of 
the Ordinance. Thus feeling dissatisfied by the grant of franchise to private 
CA.224 of 2003, etc. 
4
respondents, appellants preferred Constitutional Petitions under Article 
199 of the Constitution, before the Lahore High Court, Lahore, questioning 
validity of Section 69-A of the Ordinance being unconstitutional, void, 
unlawful and of no legal effect being violative of Article 18 of the 
Constitution, which guarantees right of freedom of trade, business or 
profession to the citizens. A learned Division Bench of the High Court 
pronounced its judgment in W.P. No.9436 of 2000 on 1st February 2001, 
declaring Section 69-A of the Ordinance intra vires of the Constitution. In 
another Writ Petition No.660 of 2000, instituted by appellants (impugned in 
Civil Appeal 224 of 2003), a learned Division Bench of High Court 
dismissed it on 19th April 2001 in view of earlier judgment referred to 
above. Later on, a larger bench, in Writ Petition No.19239 of 2002 
alongwith other petitions, examined vires of Section 69-A of the Ordinance 
and declared it intra vires of the Constitution vide judgment dated 10th 
December 2002 (impugned in Civil Appeal No.225 of 2003). Subsequent 
thereto, another Division Bench of the High Court in view of the judgment 
of the full bench, dismissed another Writ Petition No. 692 of 2003 in limine, 
which has been challenged in Civil Appeal No. 227 of 2003. It may be 
noted that in this case, respondent M/s Manthar Metro General Bus stand, 
a franchise holder, was not impleaded as party, therefore, Civil Misc. 
Application No. 1383 of 2004 was filed on its behalf for impleadment as 
party, which was allowed. Similarly, M/s Bashir & Sons, transporters/ 
operators of franchised Bus Service in Faisalabad also moved an 
application for impleadment as party, which has been  allowed and learned 
counsel permitted to argue the case.  Similarly, M/s Baloch Transport 
Company Ltd. also filed Civil Misc. Application No.2376 of 2004 to join as 
party in the above appeals but no one has appeared on their behalf to plead 
their application. Constitution Petition No. 18 of 2004 has been filed under 
CA.224 of 2003, etc. 
5
Article 184 (3) on behalf of members of the general public, who have to 
travel in stage carriages as passengers. Their grievance is also against the 
promulgation of Section 69-A of the Ordinance as according to them, their 
right of movement cannot be limited by compelling them to undertake 
journey in the transport owned by private respondents because they have 
obtained franchise rights and are charging exorbitant fare compared to 
other transporters who used to ply buses on the same route, and if 
competition is allowed, they will charge less fare from them, as such 
citizens, having limited resources of income are not bound to pay fare to 
respondents transporters at high rates.  
5. 
The conclusions drawn by learned High Court in the impugned 
judgments are as under:-  
i) 
The right guaranteed through Article 18 of the 
Constitution, pertaining to freedom of trade, is 
not absolute in terms and it is subject to 
reasonable restriction, which can be imposed 
by law, which is a clog on the fundamental 
rights. 
ii) 
A citizen under Article 18 of the Constitution 
could 
enter 
upon 
a 
lawful 
profession, 
occupation and trade/business which is to be 
regulated by a licencing system under the 
supervision and control of the Government.  
iii) 
The  Monopolies and Restrictive Trade 
Practices (Control and Prevention) Ordinance 
V of 1970 is not absolute in command as 
Section 
5(2) 
permits 
even 
 
apparently 
monopolistic steps in the contribution towards 
financial or promotion of public interest or the 
benefit arising out of said steps would outweigh 
the said competition  or lessening  the 
competition. 
CA.224 of 2003, etc. 
6
iv) 
The obvious object and purpose of the 
provisions of Section 69-A of the Ordinance is 
to rid the commuting public of hazardous, 
dangerous, unreliable and undignified means of 
transport and also to lessen the congestion on 
roads by introducing large occupancy vehicles 
instead of low occupancy wagons, etc. 
v) 
The appellants/petitioners are not being thrown 
out of business because according to the 
Government, they have been offered alternative 
routes in same city.  
vi) 
The power to regulate a trade/business 
necessarily  includes the power to prohibit 
business while regulating the same.  
vii) 
By enacting Section 69-A of the Ordinance, 
which is a regulatory provision, Article 18 of 
the Constitution has not been violated because 
while examining the vires of a statute, it is 
always presumed that the legislature would not 
flout the Constitutional provision and all efforts 
have to be made to lean in favour of the 
constitutionality of the law in order to save it 
rather than to destroy it.  
viii) 
The Government of Punjab and Secretary, 
Regional Transport Authority, while granting 
franchise to the specific routes to the 
respondents in exercise of powers under Section 
69-A of the Ordinance, have conducted 
proceedings in a transparent manner as open 
tenders were invited from the interested 
transporters to secure franchise on the specific 
routes, therefore, no monopoly has been 
created in favour of the respondents by the 
Government.  
CA.224 of 2003, etc. 
7
6. 
Leave to appeal was granted to examine the following questions:- 
(a) 
“Whether the insertion of Section 69-A in 
Punjab Motor Vehicles Ordinance 1965 by 
virtue of Punjab Ordinance No. XLVI of 1999 is 
in the public interest and is not violative of the 
constitutional guarantee of right of trade and 
business under Article 18 of the Constitution of 
Islamic Republic of Pakistan, 1973 and is in 
consonance with the provisions of Monopolies 
and Restrictive Trade Practices (Control and 
Prevention) Ordinance No. V of 1970.  
(b) 
The addition of Section 69-A in the Punjab 
Motor Vehicles Ordinance 1965 would not 
amount to protect and promote the vested 
interest of a specific class by depriving large 
number of people associated with the transport 
business of their legitimate right of earning and 
they have not been denied the equal and fair 
opportunity of right of business as provided 
under the Constitution of Islamic Republic of 
Pakistan, 1973. 
(c) 
The exclusion of wagons and mini bus owners 
from transport business under franchise routes 
scheme is not a departure to the policy of 
constitution of free competition and would not 
amount to take away the right of people from 
using the vehicle of their own choice as means of 
transport and compel them to travel through the 
franchise transport.  
(d) 
The imposing of unreasonable restriction on the 
free trade and business is not a social and 
economic exploitation as provided in Article 3 of 
the Constitution of Islamic Republic of Pakistan, 
1973.  
e) 
The provision of Section 69-A ibid for exclusion 
of wagons and mini buses as stage carriages 
from the franchise routes in the private sector is 
not a discriminatory law and the distinction 
created is based on reasonable classification.”  
CA.224 of 2003, etc. 
8
7. 
Learned counsel appearing for appellants argued against the 
constitutionality of Section 69-A of the Ordinance from different aspects but 
essentially it being contrary to Article 18 of the Constitution is liable to be 
declared void in terms of Article 8 of the Constitution.  
8. 
Conversely, learned counsel for respondents as well as Advocate 
General of Punjab stated that the provision of Section 69-A of the 
Ordinance, is not contrary to any fundamental right, therefore, it cannot be 
declared to be void as well as invalid under Article 8 of the Constitution 
and the learned Division Bench of the High Court as well as the Full Bench 
vide impugned judgments had thoroughly examined its vires in the light of 
the precedent law, referred to therein, as such it must be saved in the public 
interest because it has advanced/promoted the cause of general public 
interest.  
9. 
Mr. A. K. Dogar, learned ASC contended that monopoly in trade and 
business by grant of franchise is against Article 18 proviso (b) of the 
Constitution which guarantees the regulation of the trade, commerce or 
industry in the interest of public, subject to competition. He further 
explained that except the Federal or Provincial Government or by a 
corporation controlled by such Government under Article 18 proviso (c) of 
the Constitution no private person can be allowed to monopolize a trade or 
business and as franchise routes have been given to the private respondents 
under Section 69-A of Ordinance therefore, it is liable to be struck down on 
this  score alone. To substantiate his plea he relied upon “Grammar of 
Politics” by Harold J. Allasky 5th Edition (page 175) and referred to its 
following para:- 
 “men may begin to acquire property to safeguard their 
lives from want but they continued to acquire it because 
of the distinction which comes from its possession. It 
CA.224 of 2003, etc. 
9
satisfies their vanity and their lust for power. It enables 
them to attune well of society to their own”.  
 
Learned counsel further contended that the respondents  on account 
of their resources, influence and contacts have exploited the appellants’ 
rights as they were not in a position  to arrange the buses having capacity 
of 70 seats or more than it,  due to their poor financial conditions. On the 
other hand the respondents have not only been obliged by granting 
franchise of specified routes to them, according to their choice, the Banks 
had also provided them fabulous loans of 70% against their equity of 30% 
for purchase of stage carriages. Therefore, in this manner, Provincial 
Government has also violated Article 3 of the Constitution as well, 
according to which the State is responsible to ensure the elimination of all 
forms of exploitation and the gradual fulfillment of the fundamental 
principle from each according to his ability to each according to his work.  
 
Similarly, appellants have also been deprived of their right to life as 
they are not in a position to earn their livelihood, therefore, the security 
which has been provided to them under Article 9 of the Constitution has 
been denied to them as held in Administrator Market Committee, Kasur   
v.   Muhammad Sharif  (PLD 1994 SC1048).  
 
It is further contended by him that as per the objective resolution, 
which is now a part of the Constitution i.e. Article 2-A , it is the duty of the 
State to provide social, economic and political justice to all its citizens and 
to achieve the object. It is the duty of the Government to frame such 
policies which ensure promotion of social and economic well being of the 
people as required by provisions of Article 38 of the Constitution, but in the 
instant case the Government of Punjab by inserting Section 69-A has not 
only denied certain Constitutional rights to the appellants but has also 
discriminated them in violation of Article 25 of the Constitution.  
CA.224 of 2003, etc. 
10
10. 
Mr. Muhammad Akram Sheikh, learned counsel contended that the 
action of Punjab Government, by excluding the appellants from the trade of 
transport, without cancelling the route permits granted to them under 
Section 62 of the Ordinance, tantamounts to forfeiture of their property 
contrary to the Constitutional protection under Article 24.  
 
The provisions of Section 69-A of the Ordinance are confiscatory in 
nature because of execution of agreement between the franchise holders 
and Government all route permits possessed by the appellants have been 
virtually cancelled. Moreover, abovesaid provisions being against the 
principles of natural justice, i.e. audi alteram partem in derogative of the 
spirit of Articles 2-A and 18 of the Constitution and violative of the 
principles of State policy deserve to be struck down.  
 
He further contended that the High Court without recording 
evidence has made adverse observations against the appellants namely that 
Section 69-A of the Ordinance  has been promulgated to rid the commuting 
public of hazardous traffic, unreliable and undignified means of transport 
etc. He stated that if at all the High Court wanted to determine the factual 
aspects of the case it should have embarked upon an inquiry and on the 
basis of the same ought to have recorded a finding merely on the basis of 
conjectural and capricious reasons the judgments are not sustainable.  
 
He was also of the opinion that the Government by enacting Section 
69-A of the Ordinance has created monopoly in favour of the private 
respondents contrary to the Constitution. In support of his arguments he 
has relied upon Saghir Ahmed    Vs.   The State of UP & others (AIR 1954 
SC 728). 
11. 
Mr. Nasir Saeed Sheikh ASC, in his arguments mostly highlighted on 
factual side of the case which would be discussed at  later stage, if need be.  
CA.224 of 2003, etc. 
11
12. 
Mr. Habib-ul-Wahab-ul-Khairi ASC, contended that Section 69-A is 
contrary to the Article 18 of the Constitution, and the petitioners on whose 
behalf he is appearing being the passengers cannot be compelled to travel 
in a transport of respondents, who got franchise for specified routes and 
are charging exorbitant fare than ordinary fare, meant for same journey, 
without any legal justification. 
13. 
Syed Ali Zafar, learned ASC contended that proviso (a), (b) and (c) 
of Article 18 of the Constitution are disjunctive from each other, therefore, 
are to be interpreted independently. As per proviso (b) of Article 18 of the 
Constitution, the Government is authorized to regulate the trade, commerce 
or industry, being fully aware that there could be traders who would be 
interested to obtain franchise of a particular trade, subject to competition 
amongst equals, who are placed under same conditions, as such 
introduction of “franchise system” is not prohibited under this clause, as 
argued by the learned counsel for appellants. Therefore, for such reason, 
Government of Punjab by enacting Section 69-A of the Ordinance, had not 
violated Article 18 of the Constitution in any manner. He further contended 
that Section 69-A of the Ordinance was made as a general law, not for any 
particular person and, therefore, its validity has to be examined as a free 
standing law. According to him under Section 69-A of the Ordinance the 
Government is authorized either to put up franchise of particular routes or 
all the routes, therefore, invitations were given to the persons interested in 
obtaining franchise of all the existing routes by inviting open tenders, from 
time to time and whosoever was found suitable in competition, was 
declared entitled without any discrimination. Nor it could be argued that 
Section 69-A of the Ordinance had monopolized the trade of transport, 
against the provisions of Monopolies and Restrictive Trade Practices 
(Control and Prevention) Ordinance V of 1970 [herein after referred to as 
CA.224 of 2003, etc. 
12
“the Ordinance, 1970], thus attaching malafides to the conduct of the 
Government is not fair. It is also contended by him that appellants are not 
debarred from doing business as transporters on the same routes, provided 
they fulfill the conditions laid down for obtaining franchise rights under 
Section 69-A of the Ordinance and their objection that they are being 
thrown out of business of transport is misconceived. Thus no case of 
violation of Article 25 of the Constitution is made out as well. He also 
argued that proviso (a) of Article 18 of the Constitution stipulates that if a 
person does not qualify for the business, he is prohibited from doing it 
under the licencing system and in pursuance of these provisions, the 
Government has  laid down a policy  with certain qualifications to control 
traffic hazards and for the welfare of the people. Appellants who do not 
fulfill such qualifications, could not be heard to say  that their fundamental 
right under Article 18 of the Constitution has been denied, because it is 
always subject to law.  
14. 
Mr. Aftab Gul, ASC has adopted the arguments put forward by Syed 
Ali Zafar, ASC and also highlighted the factual aspects of the case to 
counter the arguments advanced by Mr. Nasir Saeed Sheikh, ASC. These 
factual aspects of the case will be considered at a later stage, if need be.  
15. 
Mr. Tariq Mehmood, ASC adopted the arguments of Syed Ali Zafar, 
ASC and also added that respondents got franchise in an open competition 
because the appellants did not compete for the same, therefore, they are 
estopped from agitating  against the promulgation of Section 69-A of the 
Ordinance. He further stated that Courts are not required to examine the 
vires of  Section 69-A of the Ordinance as they have no powers to question 
the wisdom of the legislature, who have framed law in pursuance of policy 
of the Government. According to him, if at all a monopoly has been created 
by granting franchise to respondents on specified routes, they have an 
CA.224 of 2003, etc. 
13
alternate remedy available to approach the competent forum for redressal 
of their grievance, in stead of invoking the constitutional jurisdiction of the 
High Court as well as of this Court.  
16. 
Syed Shabbar Raza Rizvi, learned Advocate General Punjab  
contended that under Article 18 of the Constitution,  a citizen shall have a 
right to enter upon any lawful profession subject to law, therefore, no 
absolute right has been conferred upon the appellants, as such provisions 
of Section 69-A of the Ordinance cannot be questioned, being contrary to 
Article 18 of the Constitution and, according to him, it has been enacted 
lawfully. He was also of the opinion that under Section 5(2) and 6(2) of the 
Ordinance, 1970, the Government is empowered/ competent to promulgate 
the law, authorizing a selected party to run the business to the exclusion of 
the others. Lastly he adopted the arguments of the learned counsel who 
appeared on behalf of the respondents/interveners. 
17. 
As the arguments put forward on behalf of the appellants’ counsel 
call for examination of the constitutionality of Section 69-A of the 
Ordinance, being allegedly against their fundamental rights, guaranteed 
under Article 18 of the Constitution, therefore, same is reproduced herein 
below for convenience:- 
“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 
CA.224 of 2003, etc. 
14
(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.” 
 
It may be noted that appellants have sought declaration that Section 69-A 
of the Ordinance is ultra vires of above provisions of the Constitution, on 
the touchstone of Article 8 of the Constitution, scheme of which is that any 
law, custom or usage, having the force of law in so far as it is inconsistent 
with the rights conferred by this chapter shall, to the extent of such 
inconsistency, be void and the State shall not make any law which takes 
away or abridges the right so conferred and any law made in contravention 
of Sub-Article (2) of Article 8 shall, to the extent of such inconsistency, be 
void.  
It is to be born in mind that this Court has held that the Constitution 
is a living document which portrays the aspiration and genius of the people 
and aims at creating progress, peace, welfare, amity among the citizens, 
and the nations abroad. It is the basic structure on which the entire edifice 
is built, therefore, it has to be interpreted in a manner to keep it alive and 
blossom under all circumstances and in every situation. See Government of 
Balochistan through Additional Chief Secretary   v.   Azizullah Memon 
and 16 others (PLD 1993 SC 341).  
Likewise in the case of M/s Illahi Cotton Mills and others  v. 
Federation of Pakistan and another (PLD 1997 SC 582) important 
principles of law have been highlighted keeping in view the earlier case law 
and treatises namely that “while interpreting Constitutional provisions 
Courts should keep in mind, social setting of the country, growing 
requirements of the society/nation burning problems of the day and the 
complex issues facing by the people, which the Legislature in its wisdom 
CA.224 of 2003, etc. 
15
through legislation seeks to solve. The judicial approach should be 
dynamic rather than static, pragmatic and not pedantic and elastic rather 
than rigid.  
18. 
In the Province of Punjab, in order to provide facility of high 
standard transport to the citizens/general public, licencing system has been 
made applicable under the provisions of the Ordinance and the rules 
framed thereunder. As per its  Section 48 an applicant not being a 
Government servant having any financial interest in the stage carriage 
(vehicles) either directly or indirectly is eligible to apply for a route or 
routes of the area within which he intends to operate the vehicle for a 
permit. It is significant to point out that under Section 2 (37) of the 
Ordinance  “stage carriage”, means a motor vehicle carrying or adapted 
to carry more than six persons excluding the driver which carries  
passengers for hire or reward at a separate fares paid by or for individual 
passengers, either for the whole journey or for stages of the journey”. On 
receipt of the application for grant of permit of the stage carriage the 
Regional Transport Authority after processing the same is competent to 
grant the route permit subject to the conditions to be attached thereto under 
Sections 50, 58 and 61 etc of the Ordinance . The Transport Authority also 
retains powers, under Section 62, for cancellation or suspension of the 
route permit.  
19. 
In the instant case, appellants being the valid permit holders were 
plying their stage carriages in different cities of the Province of Punjab 
including Rawalpindi, Lahore, Faisalabad etc when vide Ordinance XXXV 
of 1998 dated 9th December 1998 Section 69-A was inserted in the 
Ordinance  by the Government of Punjab  and it was kept alive by issuing 
successive Ordinances as it could not be laid before Provincial Assembly, 
as per the mandate of Article 128 of the Constitution, when on 14th day of 
CA.224 of 2003, etc. 
16
October 1999 National and Provincial Assemblies were suspended due to 
military take over, therefore, under Laws Continuation in Force Order 
1999, it remained operative and subsequent thereto has been saved under 
Article 270-AA of the Constitution. Section 69-A of the Ordinance, reads as 
under thus :-   
 
“69-A. Franchise.—(1) The provisions of this Section 
shall have effect notwithstanding anything contained in 
this Ordinance.   
(2) 
In this Section “franchise” means a permit 
granted to an operator for operation of stage carriages 
with a carrying capacity of 70 or more passengers by a 
Bus Service providing and maintaining the prescribed 
facilities on routes in respect of which it is declared by 
the Government that only a Bus Service of the nature 
referred to above shall be allowed to operate stage 
carriages thereon to the exclusion of other stage 
carriages. 
(3) 
The Government may direct the Regional 
Transport Authority to grant a franchise.  
(4) 
Where the Regional Transport Authority grants 
a franchise under sub-section (3) all existing stage 
carriage permits in respect of routes or a route or a 
portion of a route to which the franchise relates shall 
stand cancelled on the date notified for the purpose by 
the Regional Transport Authority concerned and the 
Regional Transport Authority may not grant fresh stage 
carriage permits for such routes or a route or a portion 
of a route for duration of the franchise. 
(5) 
The provisions of 60 shall not apply to a 
franchise.  
(6) 
In the case of stage carriages in relation to 
which a franchise is granted the power to fix maximum 
fares shall vest in the Regional Transport Authority. 
(7) 
(a) 
The 
Regional 
Transport 
Authority 
concerned may cancel a franchise, or may suspend a 
franchise for such period as it deems fit:- 
(i) 
for the breach of any condition 
attached to the franchise or of 
any condition or on any ground 
contained in the prescribed 
franchise Agreement; or 
CA.224 of 2003, etc. 
17
(ii) 
on any other ground mentioned 
in Section 62: 
Provided that no franchise shall 
be 
cancelled 
or 
suspended 
unless 
the 
holder 
of 
the 
franchise has been given an 
opportunity of being heard.  
Provided 
further 
that 
the 
Regional Transport Authority 
may after such hearing, rather 
than cancel or suspend the 
franchise, vary the terms and 
conditions thereof.  
(b) 
Where a franchise is cancelled or 
suspended or the terms and conditions thereof 
are varied, the Regional Transport Authority 
shall record in writing the reasons for such 
cancellation or suspension, or variations and 
shall deliver a copy thereof to the holder of the 
franchise. 
(c) 
On cancellation of a franchise, the 
holder of the franchise shall, unless the Regional 
Transport Authority in the order of cancellation 
directs to the contrary, be entitled to refund to 
the franchise fee for the unutilized portion of the 
franchise period.  
(8) 
Refusal to transfer a franchise or revise fares on 
routes to which a franchise relates shall be appealable  
under section 62. 
(9) 
A franchise shall not be transferable in any 
manner whatsoever except with the prior permission in 
writing of the Regional Transport Authority and subject 
to such conditions as may be stipulated in this behalf.  
(10) 
Notwithstanding anything contained in Chapter 
VIII of the Motor Vehicles Act, 1939 (IV of 1939) the 
Regional Transport Authority may attach to a franchise 
such conditions relating to insurances as it may deem fit.  
(11) 
Save in so far as provided otherwise in this 
section the provisions of this Ordinance or any other law 
relating to Motor Vehicles shall apply mutatis mutandis 
to a franchise.  
(12) 
all actions taken by the Government for 
introducing the franchise system before the coming into 
CA.224 of 2003, etc. 
18
force of this Ordinance shall be deemed to have been 
validly taken.” 
 
 
20. 
Perusal of Section 69-A of the Ordinance reveals that it has 
introduced “franchise system” for operating “stage carriages” absolutely 
different from the system prescribed by the Ordinance. One of the salient 
features of this law is that under its Sub-Section (2) Government has been 
empowered to declare the routes “franchise”, to be granted under its 
instructions by the Regional Transport Authority, to the exclusion of all 
other operators of stage carriages and upon grant of a “franchise” on a 
specified route, the Regional Transport Authority under Sub-Section (4) has 
been empowered to cancel all existing stage carriages permits on such  
routes or a portion of route. Such oppressive provision has been inserted in 
the statute without realizing that the operators of stage carriages are 
already carrying on a lawful trade under valid permits, since long without 
any allegation of violating the law under which route permits were granted 
to them. Further more, no notice, before cancelling their lawful licences, 
were given to them as Section 69-A does not envisage such provision. Thus 
it can be safely held that a right which has accrued to them to carry on a 
lawful business, according to the Ordinance, could not be denied to them 
by introducing “franchise” system by the Provincial Government, in view 
of the guarantees, provided to them under Article 18 of the Constitution. It 
is to be noted that under the scheme of the Ordinance, the Provincial 
Government, except supervising, had no administrative role to play as the 
trade of transport is regulated by the Regional or Provincial  Transport 
Authority. Thus, we have reason to believe that under Section 69-A of the 
Ordinance, an administrative role has been given to the Provincial 
Government for effectively carrying out its object including the exclusion of 
all other transporters, who are already in a lawful business, because if an 
CA.224 of 2003, etc. 
19
operator possesses valid route permit for plying the vehicles on a route or 
the routes obtained by it from Regional Transport Authority or the 
Provincial Transport Authority, legally Government cannot exclude him 
from the business except in terms of Section 62 of the Ordinance. However, 
it is no body’s case that the Regional Transport Authority after insertion of 
Section 69-A in the Ordinance ever exercised its jurisdiction under Section 
62 of the Ordinance and cancelled their permits.  
21. 
In view of above background it seems appropriate to examine the 
constitutionality of Section 69-A of the Ordinance, particularly power of 
Government of Punjab to grant franchise in the trade/business of transport. 
22. 
 The word “franchise” has been defined in a good number of cases 
by various Courts including the Courts of United State of America as 
reported in American Jurisprudence 2nd Edition Volume 36 (page 723), 
according to which it means:- 
i) 
“A franchise represents the right and privilege 
of doing that which does not belong to citizen 
generally, irrespective of whether net profit 
accruing from the exercise of the right and 
privilege is retained by the franchise holder or is 
passed on to a state, school  or to vehicle sub-
divisions of the state. State XREL Williamson 
Vs. the Garrison (Okla) 348 P-2 D 859. 
ii) 
Whether all persons including corporations are 
prohibited from transacting a banking business 
unless authorized by law the claim of a banking 
corporation to exercise the right to do a banking 
business a claim to a franchise. The right of 
banking under such a restraining act is a 
privilege or immunity by grant of the legislature 
and the exercise of the right is an assertion of a 
grant from the legislature to exercise that 
privilege and consequently it is usurpation of a 
franchise unless it can be shown that the 
privilege has been granted by the legislature, 
CA.224 of 2003, etc. 
20
People State XREL Attny. Gen. Vs. Utica Ins. 
Johns (NY) 358.     
iii) 
Similarly in UTAH Light and Traction Company 
Vs. Public Serv Com. 101 UTAH 99, 118 P 2nd 
683 has defined franchise as follows:- 
“A franchise is a right or 
privilege 
granted 
to 
a 
corporation or individual to do 
things which such corporation 
or individual otherwise could 
not do such as the construction, 
maintenance and operation of 
utility transmission lines either 
above or beneath the surface of 
the State street and allies. 
 
The ‘American Jurisprudence’ generally has explained the nature of the 
incidence of franchise that “as a rule, when a franchise is granted subject 
to the condition and the terms upon which it may be held it becomes the 
property of the “grantee” and is a private right subject only the 
Governmental control going out of it other enter has publicy juries”. 
Likewise in Black’s Law dictionary 5th Edition (page 592) 
‘franchise’ has been defined as follows:- 
 
“A special privilege  conferred by Government 
on individual or corporation, and which does not belong 
to citizens of country generally of common right. 
Artesian Water Co.   v. State Dept. of High Ways and 
Transp. Del. Super 330 A. 2d 432, 439, In England it is 
defined to be a royal privilege in the hand of a subject. 
 
A privilege granted or sold, such as to use a 
name or to sell products of services. The right given by a 
manufacturer  or supplier to a retailer to use his 
products and name on terms and conditions mutually 
agreed upon. 
 
In its simplest terms, a franchise is a license 
from owner of a trademark or trade name permitting 
another to sell a product or service under the name or 
mark. More broadly stated a “franchise” has evolved 
into an elaborate  agreement  under which the 
franchisee undertakes to conduct a business or sell a 
product or service in accordance with methods and 
procedures prescribed by the franchisor through 
CA.224 of 2003, etc. 
21
advertising, promotion and other advisory services. 
H&R Block., Inc.   v.  Lovelace, 208 Kan. 538, 493 P.2d 
205, 211.”   
 
From the above definitions it is concluded that “franchise” is a Privileged 
contract between the “grantor” and “grantee” in respect of a trade or 
business to the exclusion of any one else, which does not belong to citizens 
generally, with a view to create a “monopoly” in respect thereof, which is 
also known as CARTEL. 
23. 
It is well settled that the right of trade/ business or profession under 
Article 18 of the Constitution is not an absolute right but so long a trade or 
business is lawful a citizen who is eligible to conduct the same cannot be 
deprived from undertaking the same, subject to law which regulates it 
accordingly. The word “regulation”, as used in Article 18 of the 
Constitution has been interpreted by the Courts of our country keeping in 
view the provisions of Article 19(1)(g)(6) of the Indian Constitution. It 
would be appropriate to reproduce it herein below for convenience:- 
“19. Protection of certain rights regarding freedom of 
speech etc.---- (1)All citizens shall have the right-----  
(a)……………………………………………. 
(b)……………………………………………. 
(c)……………………………………………..  
(d) …………………………………………….. 
(e)…………………………………………….. 
(f)……………………………………………… 
(g) to practice any profession or to 
carry on any occupation trade or 
business. 
(2) …………………………………………….. 
(3)…………………………………………….. 
(4) …………………………………………….. 
(5) ……………………………………………..  
(6) anything in sub-clause (g) of the said clause shall 
effect the operation of any existing law in so far as it 
imposes or prevents the State from making any law 
imposing, in the interest of the general public, 
reasonable restriction on the exercise of the right 
CA.224 of 2003, etc. 
22
conferred by the said sub-clause and any particular 
[nothing in the said sub-clause shall effect the operation 
of any existing law in so far as it relates to or prevent 
the State from making any law relating to--- 
(i) 
the 
profession 
or 
educational 
qualification necessary for practicing 
any profession or carrying on any 
occupation, trade or business  
(ii) the carrying on by the State or by a 
corporation owned or controlled by the 
State of any trade business industry or 
service] whether to the exclusion 
complete or partial of citizens or 
otherwise.” 
 
 
 It may be noted that word “reasonable” was inserted in Article 19 
of the Indian Constitution, vide Constitution (First Amendment Act 1951), 
but it has not defined the expression “reasonable restriction” itself. 
However, from different judicial pronouncements following definitions can 
be considered for purpose of ascertaining the meaning of “reasonableness 
of restriction” on the fundamental rights of the citizens, to conduct any 
lawful trade or business:-  
i) 
The limitation imposed upon a person in 
enjoyment of a right should not be arbitrary or 
of an excessive nature beyond what is required 
in the interest of the public. M/s Dwarka Prasad   
v.   State of U.P. (AIR 1954 SC 224), P.P. 
Enterprises    v.  Union of India (AIR 1982 SC 
1016)]. 
ii) 
The Court would see both to the nature of the 
restriction and procedure prescribed by the 
statute for enforcing the restriction on the 
individual freedom. Not only substantive but 
procedural provisions of statute also enter into 
the verdict of its reasonableness. Kishan Chand   
v.   Commissioner of Police (AIR 1961 SC 705).  
iii) 
The principles of natural justice are an element 
in considering reasonableness of a restriction 
but the elaborate rules of natural justice may be 
excluded expressly or by necessary implication 
CA.224 of 2003, etc. 
23
where procedural provisions are made in the 
statute. Haradhan Saha     v.   State of W.B. 
[(1975) 3 SCC 198]   
  iv) 
Absence of provision for review makes the 
provisions unreasonable. K.T. Moopil Nair    v.   
State of Kerala (AIR 1961 SC 552).   
v) 
Retrospectivity of a law may also be the relevant 
factor of law, although a retrospectivity of law 
does not make it automatically unreasonable. 
Narottamdas   v.    State of Maddhya Pradesh 
and others (AIR 1964 SC 1667).  
vi) 
Reasonable restriction also includes cases of 
total prohibition of a particular trade or 
business which deprive a person of his 
fundamental right under certain circumstances. 
Narindra Kumar Vs. Union of India (AIR 1960 
SC 430) 
 
24. 
It is to be noted that our Constitution stands in sharp contrast to the 
corresponding provisions of Indian Constitution. A comparison of Article 
18 of the Constitution and Article 19 (1)(g)(6) of the Indian Constitution 
manifestly makes it clear that in later Constitution, words “lawful” and 
“regulation” are conspicuously omitted but while defining the word 
“regulation” our Courts have followed the interpretation of Indian 
Supreme Court of expression “reasonable restriction”, while dealing with 
the concept of “free trade/business etc.” under Article 18 of the 
Constitution, despite the distinction noted herein above. In this behalf, 
reference may be made to Administrator Market Committee, Kasur, etc.         
v.       Muhammad Sharif (1994 SCMR 1048).  
Whereas in Black’s law Dictionary the word ‘regulation’ has been defined 
as follows:- 
“Regulation. The act of regulating; a rule of order 
prescribed for management or government; a regulating 
principle; a precept. Rule of order prescribed by 
CA.224 of 2003, etc. 
24
superior or competent authority relating to action of 
those under its control. Regulation is rule or order 
having force of law issued by executive authority of 
government.”  
Perusal of above definition persuades us to hold that there cannot be denial 
of the Government’s authority to regulate a lawful business or trade, but 
question would arise whether under the garb of such authority, the 
Government can prohibit or prevent running of such a business or trade. 
To find out the answer to this question, reference may be made to the case 
of  Municipal Corporation of the City of Toranto     v.   Virgo (1896 A.C. 
88, 93), where Lord Davey while discussing a statutory power conferred on 
a Municipal Council to make bye-laws for regulating and governing a 
trade made the following observation:- 
“No 
doubt 
the 
regulation 
and 
governance of a trade may involve the 
imposition 
of 
restrictions 
on 
this 
exercise………… 
Where 
such 
restrictions are in the opinion of the 
public authority necessary to prevent a 
nuisance or for the maintenance of 
order. But their Lordships think that 
there is marked distinction to be drawn 
between the prohibition or prevention of 
a 
trade 
and 
the 
regulation 
or 
governance of it, and indeed a power to 
regulate and govern seems to imply the 
continued existence of that which is to 
be regulated or governed.”  
The above judgment has also been cited in Saghir Ahmed‘s case (ibid), 
which has also been relied upon by the learned counsel for appellants, 
particularly Mr. Muhammad Akram Sheikh, Sr. ASC. We may observe that 
some of the principles highlighted in this case may not be attracted in the 
facts of the case in hand because it was pronounced prior to Constitutional 
amendment in 1951, in pursuance whereof the word “reasonable’ was 
CA.224 of 2003, etc. 
25
added before the word “restriction”.  But at the same time this judgment 
also contained at least two other important observations, which will be 
referred to at a later stage. At this juncture, reference to the case of 
Government of Pakistan through Secretary Ministry of Commerce and 
another    v.    Zamir Ahmed Khan (PLD 1975 SC 667), seems to be 
important, with reference to proposition under discussion. In this case, 
respondent Zamir Ahmed challenged the amendment in SRO No.54(i)/72 
dated 15th May 1972 in pursuance whereof cinematograph films were 
allowed to be imported  from abroad subject to presentation of a licence 
form for authentication by the licencing authority etc. Subsequently this 
notification was amended as per gazette notified on 10th August 1972 
whereby 
private 
respondents 
were 
disqualified 
from 
importing 
cinematograph films and the agencies to be specified by the Ministry of 
Information and Broadcasting were allowed to import the films. The 
licence to import the films was declined to the respondent, therefore, he 
invoked the constitutional jurisdiction of the High Court but no relief was 
given to him and the petition was dismissed on the ground that no right in 
his favour had been created. An appeal was filed against this order which 
was allowed by latter’s Patent Bench. The Government preferred appeal 
before this Court, wherein while interpreting Article 18 of the Constitution, 
this Court made following observations:- 
“It will be appropriate to examine in the first instance, 
whether the respondent can invoke any provision of the 
Constitution in the Chapter relating to the Fundamental 
Rights for the grant of licence for the import of films. 
Article 18 of the Constitution, which relates to the 
freedom of trade, business or profession, which 
corresponds to Article 15 of the Interim Constitution, 
and which incidentally held the field at the relevant time, 
assures the citizens the right to enter upon any “lawful 
profession or occupation” and  “ to conduct any lawful 
CA.224 of 2003, etc. 
26
trade or business”. It is important to point out that the 
word “lawful” qualifies  the right of the citizen in the 
relevant field. This clearly envisages that the State can 
by law ban profession, occupation, trade or business by 
declaring it to be unlawful which in common parlance 
means any thing forbidden by law. Prostitution, 
trafficking in women, gambling, trade in narcotics or 
dangerous drugs are common place instances of 
unlawful profession or trade. These are inherently 
dangerous  to public health or welfare. Therefore, on the 
wording of occupation or to conduct trade or business 
can hardly be described to be a constitutional or 
fundamental right when such right may be denied by 
law.”     
The above judgment was maintained in review petition in the judgment 
reported as Zamir Ahmed Khan    v.   Government of Pakistan and 
another (1978 SCMR 327). Aforesaid conclusion seems to be in 
consonance with the judgment in the case of Municipal Corporation of the 
City of Toranto (ibid).  
25. 
It may be noted that broad principles laid down in the judgments of 
Indian jurisdiction, some of which have been noted herein above, 
interpreting the word “reasonable restriction”,  did not say that it would 
also mean “prohibition” or “prevention” completely, except under certain 
circumstances. 
26. 
 Now we have got before us the definition of the word “reasonable 
restriction” as defined by the Courts of Indian jurisdiction and the 
definition of the word “regulation” according to our own Court, and as per 
its dictionary meanings. Therefore, it would be seen that in order to resolve 
the controversy, which definition, out of two, is to be followed. But before 
doing so, we consider it appropriate to examine the judgments cited by the 
learned counsel for respondents, to contend that Government can prohibit 
and prevent any trade or business in the public interest:- 
CA.224 of 2003, etc. 
27
 
Case Law 
 
 
Discussion 
 
i) 
Mehtab Jan and another   v.  
Municipal 
Committee 
Rawalpindi 
 (PLD 1958 W.P. Lahore 929)  
 
In this case while examining Article 12 of 
the Constitution of 1956, with regard to a 
case in which notice was issued by the 
Municipal Corporation Rawalpindi that 
“all 
owners, 
tenants, 
residents 
and 
prostitutes”, who reside in the area known 
as Serai Beli Ram  for the purpose of 
adultery, should vacate their premises 
within a month, reason  for the notice 
being that the use of the locality in 
question as “chakla” was injurious to the 
morals of the residents, held that “morality 
and decency are as fundamental as the 
fundamental rights themselves, and in the 
context of our Constitution, bearing in 
mind the preamble and the directive 
principles, a fundamental right is like the 
moon and morality like the disk of light 
surrounding 
it. 
A 
profession 
whose 
practice 
Pakistan’s 
Constitution 
guarantees to the citizen could not 
conceivably be a profession involving 
indecency or immorality”. It is further held 
that “the advocacy of a “full and free” 
right to practice prostitution violates both 
the 
spirit 
and 
the 
letter 
of 
the 
Constitution”. Therefore this case has no 
application to the instant case.  
 
ii) 
Government of Pakistan    v.  
Syed Akhlaque  Hussain and 
another  (PLD 1965 SC 527)  
 
M/s Haider Automobile Ltd.  
v.  Pakistan    
(PLD 1969 SC 623) 
 
 
In both these cases, the respondents, who 
were former Judges of the High Court 
were banned  to practice before the High 
Courts, which were adorned by them as 
permanent 
Judges, 
under 
the 
Legal 
Practice (Disqualification) Ordinance (II 
of 1964), therefore, they challenged the 
vires of this Ordinance on the ground that 
it has violated their fundamental right of 
practice or profession. This Court keeping 
in 
view 
the 
peculiar 
facts 
and 
circumstances of the case, particularly the 
respect and dignity of the retired Judges of 
the Superior Courts held as under:- 
 
“The fact of partial disbarment 
is however plain, and where this 
occurs in diminution of a 
franchise 
which 
has 
been 
enjoyed 
for 
a 
period, 
the 
question would arise whether 
the law can effectively produce 
such a loss of a property right, 
consistently 
with 
the 
requirement of the Constitution. 
Speaking generally, the law as 
an 
instrument 
for 
the 
advancement 
of 
the 
public 
interest must be adapted to 
existing 
requirements, 
being 
specially 
sensitive 
to 
the 
existence of any elements of 
mischief or injury which it finds 
in operation. The law moves 
CA.224 of 2003, etc. 
28
slowly, 
and 
therefore, 
conservatively, but instances 
are not uncommon of the law 
moving 
to 
remedy 
gross 
inefficiency 
and 
inequalities 
which have grown up under its 
protection in the past, even at 
the cost of deprivation of the 
existing 
rights 
of 
property. 
There is the instance of the land 
reform, 
which 
was 
found 
necessary in the entire sub-
continent following upon the 
century during which, under 
British rule, a condition had 
developed 
leading 
to 
monopolization and inefficient 
exploitation of land, to the 
detriment of the prosperity of 
the 
common 
people. 
The 
technique of decartelization in 
industry and commerce in many 
countries 
through 
legal 
instruments, 
affords 
another 
example of the removal of 
existing 
mischiefs 
by 
the 
deprivation of existing rights of 
ownership, because such rights 
having developed in unbalanced 
fashion, so as to produce real 
dangers to the public interest in 
the 
shape 
of 
unhealthy 
monopolies. The Constitutional 
right in respect of property is 
expressed 
in 
the 
following 
simple terms, viz.:--- 
“No 
person 
shall 
be 
deprived of his property 
save in accordance with 
law.” 
 
In this case, the loss of a 
property right through partial 
disbarment has been operated 
by a law. It has no quality of a 
“bill of attainder” such as was 
found by the majority of the 
Supreme Court of the United 
States in the case of Garland. 
That 
Court 
had 
under 
consideration a law of Congress 
depriving attorneys of their 
entire right of practicing the 
profession of law, unless they 
took an oath  denying that they 
had over participated on behalf 
of the Confederacy of the 
Southern States in the American 
Civil War. The case was one of 
the treason being visited with 
punishment through legislative 
instrumentation. Here, it is not a 
case of punishment at all. The 
Ordinance of 1964 operates in 
CA.224 of 2003, etc. 
29
aid of maintenance of the 
judicial machinery at the apex 
of the system in that State of 
dignity, which is essential to its 
proper operation. In the case of 
Garland, it was found that the 
law also operated ex post facto, 
that is, it applied to an act not 
punishable 
when 
it 
was 
performed, a punishment of 
later 
devising. 
Such 
a 
prohibition is contained in the 
Pakistan 
Constitution 
in 
Fundamental Right No. 4, but 
that 
right 
is 
clearly 
not 
attracted, for here indeed there 
is nothing in the nature of a 
punishment being applied. Nor 
can it be said that there is 
violation of the right of equality 
of 
citizens 
expressed 
in 
Fundamental Right No. 15, in 
the following terms viz.:--- 
All citizens are equal 
before law and are 
entitled 
to 
equal 
protection of law.” 
     
As a result of above observation, the 
petition filed by the Government was 
accepted. 
 
Same rule has been followed in the case of 
Haider Automobile Ltd. , where this Court 
had examined the judgment of the High 
Court in the case of Manzoor Qadir, 
(former Judge).  
 
The above judgments are also not 
applicable 
 
because 
by 
means 
of 
Ordinance 1964, the former/retired Judges 
of the Superior Courts were completely 
debarred to practice later. However, they 
were prevented to do so before the High 
Court, which they had served as former 
Judge. As such the judgments are not 
applicable. 
 
   
iii)  Government 
of 
Pakistan 
through Secretary Ministry of 
Commerce and another    v.  
Zamir Ahmed Khan  
(PLD 1975 SC 667) 
 
 
The facts of this case in brief have already 
been noted herein above. Learned counsel 
has highlighted the principle namely that 
“licence does not create a right in favour 
of its holder”. There is no dispute with this 
principle but it is to be noted that the 
appeal filed by the Government had 
succeeded on the point that Section 3(1) of 
the Export (Control) Act (XXXIX of 1950) 
read with Import Policy Order 1972 were 
not challenged and the respondent had in 
fact show his grievance only in respect of 
amended notification dated 10th August 
1972 whereby official agency through 
Ministry of Information and Broadcasting  
CA.224 of 2003, etc. 
30
was allowed to import cinematographic 
films, therefore, he failed to get relief from 
the Court. Thus for this reason this 
judgment is also not applicable.  
   
iv) 
M/s East and West Steamship 
Co.     v.   Pakistan. 
(PLD 1958 SC 41) 
 
In this judgment  it was held that “a right 
given by Article 12 has to be read subject 
to clause (a) of the proviso, which 
expressly states that a trade may be 
regulated by a licencing system, and if the 
effect of a licencing system is prohibition 
then it follows that prohibition of a trade 
by a licencing system was contemplated by 
the framers of the Constitution”. In our 
considered opinion, Article 12 of the 
Constitution of 1956 is distinguishable 
from proviso (b) of Article 18 of 
Constitution of 1973 which had introduced 
the element of competition amongst the 
traders and this Court in the case of 
Government 
of 
Pakistan 
(ibid) 
has 
explained the meaning of the “regulation” 
holding that prohibition or prevention of a 
trade is possible only if the same is 
unlawful. Therefore, this judgment is also 
not attracted.  
  
27.     The edifice of the arguments of Syed Ali Zafar, learned ASC is based 
on premises that as appellants were not qualified to get franchise of 
specified routes, therefore, in terms of Article 18 (a) of the Constitution, 
they were excluded from the business of transport as per the provisions of 
Section 69-A of the Ordinance. But in our opinion, in Article 18 of the 
Constitution, word “qualification” has been used to confer a right upon a 
citizen to enter upon any lawful profession or occupation and not to 
conduct any lawful trade or business. Admittedly Section 69-A of the 
Ordinance had not prescribed a qualification for the transporters. As per 
ordinary meanings of, “qualification” a quality, which is legally necessary 
to render a person eligible to fill an office or to perform any public duty or 
function like a qualified voter, who meets the residence, age and 
registration requirements etc. [Black’s law Dictionary (page 1116)], 
therefore, it can be safely concluded that a person without having a 
qualification can run a business or trade of transport. Perhaps learned 
counsel wanted to convey that as appellants were not in a position to 
CA.224 of 2003, etc. 
31
operate stage carriages with capacity of carrying 70 or more passengers, 
therefore, under Section 69-A of the Ordinance, they were disqualified to 
get franchise. This assumption is not correct because, the appellants were 
not competing for franchise routes as they were already in possession of 
valid route permits, which were not cancelled for violation of the law, 
under which the same were issued to them i.e. Section 62 of the Ordinance, 
therefore, in absence of any competition between the appellants and 
respondents, they were qualified to ply their stage carriages on the same 
routes.  
 
It may be noted that in pursuance of sub-section (4) of Section 69-A 
of the Ordinance, route permits of the appellants have been cancelled in 
violation of principles of natural justice, as sub-section (4) of Section 69-A, 
expressly or by necessary implication provides that they would be entitled 
to right of hearing before the cancellation of their permits to run a valid 
stage carriage, which they were possessing since long and on the basis of 
the same, were plying their vehicle on the specified routes.  
Argument of learned counsel for respondents is that competent 
authority can regulate any trade or profession by a licencing system. There 
may be no cavil but this clause has to be read conjunctively with proviso 
(b) of  Article 18 of the Constitution, according to which an element of free 
competition to regulate a trade, commerce or industry has been introduced 
because if competition in the trade is discouraged, it would negate the 
provisions of Article 3 of the Constitution, which deals with the elimination 
of all forms of exploitation and if due to non-competition, franchise is 
granted on specified routes, it would tantamount to monopolize the trade/ 
business of transport, as held in the case of Harman Singh      v.   R.T.A. 
Calcutta Region.  (AIR 1954 SC 190). Relevant para therefrom is 
reproduced herein below for convenience:- 
CA.224 of 2003, etc. 
32
“(8) 
The next contention of Mr. Choudhry that the 
introduction of small taxis in the streets of Calcutta will 
bring about a total stoppage of the existing motor taxi 
cab business of large taxi owners in a commercial sense 
and would thus be an infringement of the fundamental 
right guaranteed under Article 19(1)(g) of the 
Constitution is again without force. Article 19(1) (g) 
declares that all citizens have the right to practice any 
profession, to carry on any occupation, trade or 
business, Nobody has denied to the appellants the right 
to carry on their own occupation and to ply their taxis. 
This article does not guarantee a monopoly to a 
particular individual or association to carry on any 
occupation and if other persons are also allowed the 
right to carry on the same occupation and an element of 
competition is introduced in the business, that does not 
in the absence of any bad faith on the part of the 
authorities, amount to a violation of the fundamental 
right guaranteed under Article 19(1)(g) of the 
Constitution. Under the Motor Vehicles Act it is in the 
discretion of the Regional Transport Authority to issue 
permits at different rates of tariff to different classes of 
vehicles plying in the streets of Calcutta and if that 
power is exercised in a ‘bona fide’ manner by the 
Regional Transport Authority for the benefit of the 
citizens of Calcutta, then the mere circumstance that by 
grant of licence at different tariff rates to holders of 
different taxis and different classes of vehicles some of 
the existing licence holders are affected cannot bring the 
case under Article 19 (1)(g) of the Constitution.”   
 
In the instant case as well, the Government of Punjab, instead of 
promulgating Section 69-A of the Ordinance for the purpose of granting 
franchise on specified routes to the respondents by excluding all other 
transporters, running their stage carriages against valid route permits on 
the same routes, ought to  have granted route permits to respondents as 
well under the Ordinance, in order to cater the pressure of the passengers 
on those routes with clear direction to them to charge less fare from 
passengers, compared to the fare which is being charged by the appellants 
CA.224 of 2003, etc. 
33
transports, who are already plying their vehicle on the same routes and if 
owing to such free competition, if any of them had failed to compete, it 
could have excluded itself from the business, instead of providing a cause 
of grievance to the appellants, to whom right to live has been denied as 
they are not in a position to survive, on account of being excluded from the 
business in terms of Article 9 of the Constitution. The word “life” used in 
this Article of the Constitution has been defined in the case of Shehla Zia    
v.   WAPDA (PLD 1994 SC 693), according to which “life” includes all 
such amenities and facilities which a person born in a free country is 
entitled to enjoy with dignity, legally and constitutionally”. It is further 
explained therein that the word “life” in the Constitution has not been used 
in a limited manner. A wide meaning should be given to enable a man not 
only to sustain life but to enjoy it. Moreover, under the objective resolution 
which is a part of the Constitution, it is the duty of legislature to ensure an 
egalitarian society, based on Islamic concept of fair play and social justice, 
as held in the case of Shaukat Ali    v.  Government of Pakistan  (PLD 
1997 SC 342). Relevant para therefrom reads as under thus:- 
“4. 
Since the Railways intend to grant licences 
in the above terms in order to ensure that no one is 
discriminated or favoured  for the reason other than 
the well-being of the people and the country at 
large, no purpose will be served by granting leave. 
We may observe that since Pakistan is founded on 
the basis of religion of Islam, efforts should be 
made to bring about an egalitarian society based on 
Islamic Concept of fair play and social justice. The 
State functionaries like Railways are expected to act  
fairly and justly, in a manner which should not give 
to any one cause of complaint on account of 
discriminatory treatment or otherwise. While 
discharging official functions, efforts should be 
made to ensure that no one is denied to earn his 
CA.224 of 2003, etc. 
34
livelihood because of the unfair or discriminatory 
act on the part of any State functionary. It is hoped 
that the petitioners who had been earning livelihood 
for considerable long period on the basis of licences 
granted by the Railways, will be treated fairly.” 
As observed herein above, Constitution is a living document which portrays 
the aspirations and genius of the people and aims at creating progress, 
peace, welfare, amity among the citizens, therefore, while interpreting its 
different Articles particularly relating to the fundamental rights of the 
citizens, approach of the Courts should be dynamic rather than static, 
pragmatic and not pedantic and elastic rather than rigid. As such, 
following this principle and also keeping in view other provisions of the 
Constitution, including Article 3, 9, 18 as well as Article 38 of the 
Constitution, which deals with the principles of State policy, we are 
inclined to hold that if the definition of word “regulation” as laid down in 
the judgments cited herein above, is applied to hold that under licencing 
system, unless the business is unlawful or indecency is involved therein, the 
legislature can enact laws, which will promote a free competition in the 
fields of  trade, commerce and industry. At any rate, if restrictions are to be 
imposed to regulate such trade or business, those should not be arbitrary 
or excessive in nature, barring a majority of  persons to enjoy such trade. 
In the instant case, as per the requirement of Section 69-A of the 
Ordinance, the appellants, who are the owners of the stage carriages as per 
the definition under Section (2) 37 of the Ordinance, would not be in a 
position to run the business on the specified routes, franchise of which has 
been offered to the respondents because it has been inferred from the facts 
of the case put forward by parties’ counsel that for one route they have to 
arrange a fleet of stage carriages. Obviously the appellants are not in a 
position to arrange such fleet, on account of their financial position or 
CA.224 of 2003, etc. 
35
being un-influential person. They are also not in a position to obtain hefty 
loans from the financial institutions, as have been given to respondents at 
70% and 30% ratio, and thus unable to compete with the respondents. 
Consequently, such conditions would appear to be not only arbitrary but 
oppressive in nature and tend to deprive them from enjoying the 
fundamental right of freedom of trade and business, as per Article 18 of the 
Constitution. Therefore, in such situation it becomes duty of the Court to 
see the nature of the restrictions and procedure prescribed therein for 
regulating the trade and if it comes to the conclusion that the restrictions 
are not reasonable then the same are bound to be struck down.  
As discussed herein above, the conditions imposed under Section 69-
A of the Ordinance are held to be very harsh, unjust, arbitrary, oppressive 
and contrary to principles of natural justice, because by the time it is well 
settled that if an adverse action is likely to be taken against a person, 
detrimental to his interest, he is entitled to the right of hearing before 
finalization of such action. In this behalf, reference can be made to the case 
of Pakistan International Airlines (PIAC)   v.   Nasir Jamal Malik  (2001 
SCMR 935). Relevant para therefrom is reproduced herein below for 
convenience:- 
“Though the principle of audi alteram partem is not 
universally accepted principle but emphasis on its 
application has always been made on those proceedings 
where adverse action is being contemplated to be taken 
against the person/persons who have at least a right to 
defend such action or during course of time they have 
acquired a right to negate allegations on basis of which 
an action adversely affecting their interest is being 
taken. To strengthen the arguments reference may be 
made to Chief Commissioner, Bahawalnagar and others 
(PLD 1964 SC 461), (iv) Abul Alla Maudoodi v. 
Government  of West Pakistan (PLD 1964 SC 673) (v) 
University of Dacca v. Zakir Ahmed (PLD 1965 SC 90), 
CA.224 of 2003, etc. 
36
(vi) Muhammad Hayat v. Province of West Pakistan 
(PLD 1964 SC 321). (vii) Massers East-end-Export, 
Karachi v. The Chief  Controller of Imports and Exports. 
Rawalpindi and another (PLD 1965 SC 605), (viii) 
Pakistan and others v. Public At Large and others (PLD 
1987 SC 304), (ix) Khaliluz Zaman v. Supreme Appellate 
Court, Lahore and 4 others (PLD 1994 Sc 885), (x) 
Ghulam Mustafa Jatoi v. Additional District and 
Sessions Judge/Returning Officer, N.A. 158, Naushero 
Feroze and others 1994 SCMR 1299 and (xi) Faqir 
Ullah v. Khalil-uz-Zaman and others (1999 SCMR 
2203).”   
 
28. 
It may be noted that Section 69-A of the Ordinance is coached in 
such a language that one feels no difficulty to draw an inference that a new 
system is being introduced, which is absolutely different and distinct from 
the licencing system of running the transport as has been provided under 
the Ordinance 1965, without providing right of hearing to these stage 
carriages’ owners, who are being excluded from the trade, as observed 
herein above but no right of appeal or revision against the order of 
Secretary, Regional Transport Authority or the Government, has been 
provided, therefore, due to this reason as well, Section 69-A seems to be 
unreasonable law. Thus it can be safely concluded that the restrictions 
imposed by Section 69-A of the Ordinance leading to exclude the appellants 
from the trade/business of transport had prevented/prohibited the 
appellants and many other transporters to enjoy the guaranteed 
fundamental right of freedom of trade/business as per Article 18 of the 
Constitution.  
29. 
Next question for consideration would be as to whether  Article 18 of 
the Constitution permits introduction of franchise system in the 
trade/business. Definition of “franchise” from the American Jurisprudence 
and Black’s Law Dictionary has already been noted herein above, crux of 
CA.224 of 2003, etc. 
37
which is that a special privilege granted to a particular person/party to do 
a specific business, to the exclusion of all other persons, dealing in the 
same business would not be reasonable . A perusal of proviso (b) of Article 
18 of the Constitution indicates that regulation of the trade, commerce or 
industry is permissible in the interest of free competition therein. Meaning 
thereby that without free competition amongst traders, no trade commerce 
or industry can be regulated. To understand the concept of free 
competition, this clause may be read, keeping in view proviso (c) of Article 
18 of the Constitution, according to which only Federal Government or 
Provincial Government or a Corporation controlled by such Government 
can carry on any trade, business, industry or service to the exclusion, 
complete or partial, of such other person, which would mean that under 
clause (c), a right has been given only to the Government to create 
monopoly and confer right of franchise to any of the functionaries 
mentioned therein for the purpose of carrying on a business.  As far as 
private persons are concerned, they cannot be excluded from carrying on 
trade for the purpose of creating monopoly and granting franchise of a 
particular trade.  The concept of franchise is alien to the Indian 
Constitution as well as to our own Constitution because with reference to 
running of transport on the route owned by the public, all citizens have 
equal rights and they cannot be deprived from the same for the reason that 
some of them had obtained franchise on the said route.  In this behalf it is 
to be noted that we are informed that on some of the routes granted to the 
private respondents i.e. Varan Tours in Islamabad – Rawalpindi, the 
franchise holder is also plying the stage carriages on the highway i.e. 
Peshawar road etc.  This fact has not been disputed by the other side, 
therefore, we are of the opinion that the provisions of Section 69-A of the 
Ordinance cannot be pressed into service to exclude all other citizens 
CA.224 of 2003, etc. 
38
including the appellants, preventing them from use of the highways for the 
purpose of running the business of transport.  In this behalf in the following 
para, Indian Supreme Court in Saghir Ahmed’s  case (ibid) has 
elaborately discussed this aspect of the case:- 
“But the right of the public to use motor vehicles on the 
public road cannot, in any sense, be regarded as a right 
created by the Motor Vehicles Act. The right exists 
anterior to any legislation on this subject as an incident 
of public right over a highway. The State only controls 
and regulates it for the purpose of ensuring safety, 
peace, health and good morals of the public. Once the 
position is accepted that a member of the public is 
entitled to ply motor vehicles on the public road as an 
incident of his right of passage over a highway, the 
question is really immaterial whether he plies a vehicle 
for pleasure or pastime or for the purpose of trade and 
business. The nature of the right in respect to the 
highway is not in any way affected thereby and we 
cannot agree with the learned Advocate General that the 
user of a public road for purposes of trade is an extra 
ordinary or special use of the highway which can be 
acquired only under special sanction from the State.” 
 
After having explained the public right to use a public road or highway 
their lordships proceeded to examine whether grant of franchise to a 
private person is permissible under the Indian Constitution or not and after 
taking into consideration the material available on record it was concluded 
as under:- 
“We do not think that this is the law of India under our 
Constitution. The cases referred to above were noticed 
by the Allahabad High Court in the Full Bench decision 
of Motilal v. Uttar Pradesh Government, and two of the 
learned Judges constituting the Full Bench expressed 
their opinion that this ‘doctrine of exceptional user’ 
might have been evolved by the American Courts in the 
same way as they evolved the ‘doctrine of police 
powers.’ They both held that this American rule did not 
embody the English or the Indian law on the subject.  
CA.224 of 2003, etc. 
39
 
This identical point was investigated with 
considerable thoroughness  in a recent  decision of the 
Madras High Court in C. S. S. Motor Service v. State of 
Madras, and it was pointed out by Venkatarama Ayyar 
J. who delivered the judgment of the Court, that the rule 
of special or extraordinary use of highways in America 
had its roots in the doctrine of ‘franchise’, which is still 
a recognized institution in that country. The doctrine of 
‘franchise’ or ‘privilege’ has its origin in English 
Common Law and was bound up with the old 
prerogative of the Crown. This doctrine continued to live 
in the American legal world as a survival of the pre-
independence days, though in an altered form. The place 
of the royal grants under the English Common Law was 
taken by the legislative grants in America and the grant 
of special rights by legislation to particular individuals 
or companies is regarded there as a ‘franchise’ or 
privilege’ differing from the ordinary liberties of a 
citizen. The carrying on of transport buses by common 
carriers on the public road in America is a ‘franchise’ 
and not a common law right, which could be claimed by 
all citizens and a distinction is made, as the cases cited 
above will show, between contract carriers who carry 
passengers or goods under particular contracts and 
common carriers whose business is affected with public 
interest. Over the latter the State claims and exercises a 
plenary power of control. Ayyar J. has, in our opinion, 
rightly pointed out that this doctrine of ‘franchise’ has 
no place in our Constitution. Under the Indian 
Constitution the contract carriers as well as the common 
carriers would occupy  the same position so far as the 
guaranteed right under article 19(1) (g) is concerned 
and both are liable to be controlled by appropriate 
regulations under clause (6) of that article. The law on 
the point, as it stands at present, has been thus summed 
up by the learned Judge.  
 
“The true position then is, that all public streets 
and roads vest in the State, but that the State holds them 
as trustees on behalf of the public. The members of the 
public are entitled as beneficiaries to use them  as a 
matter of right and this right is limited only by the 
similar rights possessed by every other citizen to use the 
pathways. The State as trustees on behalf of the public is 
CA.224 of 2003, etc. 
40
entitled to impose all such limitations on the character 
and extent  of the user as may be requisite for protecting 
the rights of the public generally; ……… but subject to 
such limitations the right of a citizen to carry on 
business in transport vehicles on public pathways  
cannot be denied to him on the ground that the State 
owns the highways.” 
 
We are in entire agreement with the statement of 
law made in these passages. Within the limits imposed 
by State regulations any member of the public can ply 
motor vehicles on a public road. To that extent he can 
also carry on the business of transporting passengers 
with the aid of the vehicles. It is to this carrying on of the 
trade or business that the guarantee in article 19 (1) (g) 
is attracted and a citizen can legitimately complain if 
any legislation takes away or curtails that right any 
more than is permissible under clause (6) of that 
article”. 
 
The question of non-recognition of the doctrine of franchise, as per 
the mandate of Article 19 (1) (g) of the Indian Constitution as discussed 
above, was reaffirmed in the case of Krishna Kakkan  v.  Government of 
Kerala and others  (AIR 1997 SC 128) i.e. under clause (1) (g) of Article 
19 of the Indian Constitution, all citizens have a confirmed right to choose 
their own employment or take upon any trade or business subject to the 
limits as may be imposed by the State in the interest of public welfare and 
other guarantees mentioned in clause (6) of Article 19 but it may be 
emphasized that the Constitution does not recognize franchise or right to 
business which depends on the guarantees  
30. 
In our opinion, there is no distinction in the Indian Constitution as 
well as our own Constitution to the extent of grant of franchise in a trade, 
therefore, we are persuaded to hold that in the trade of transport by 
inserting Section 69-A of the Ordinance, grant of franchise on specified 
routes is contrary to the provisions of Article 18(b) of the Constitution, 
therefore, deserves to be declared void, under Article 8 of the Constitution.   
CA.224 of 2003, etc. 
41
31. 
It is important to note that Ordinance of 1999 could not be placed 
before the Provincial Assembly to make it an Act because during its 
subsistence Provincial Assembly was suspended on account of Military 
takeover on 12th October, 1999, therefore, it may be legitimately presumed 
that in the enactment of Section 69-A of the Ordinance the public views 
through elected representative are not included. Thus in the absence of 
public opinion in promulgating Section 69-A of the Ordinance, it may not 
be difficult to infer that it was not promulgated in the public interest and 
general welfare etc. Indeed had this law been discussed in the Assembly, 
through the representatives of the public, it might have changed its 
complexion, to bring it within the command of Article 18 of the 
Constitution.   
32. 
In the alternative it may be observed that the High Court seized with 
the writ petition ought to have conducted an inquiry in the interest of 
justice to ascertain as to whether addition of Section 69-A of the Ordinance 
is for the public interest and general welfare and thus a valid law 
according to Article 18 of the Constitution. Such exercise can always be 
undertaken in the interest of justice or the Court can always direct the 
Government to conduct inquiry in this behalf and to decide the validity of 
Section 69-A of the Ordinance as done in the case of  Pratap Pharma (Pvt.) 
Limited  v.  Union of India (AIR 1997 SC 2648). 
33. 
Mr. Maqbool Ellahi Malik, learned ASC for respondents i.e. Varan 
Tours, raised altogether a novel of argument in an attempt to save Section 
69-A of the Ordinance.  According to him, respondent Varan Tours is an 
instrumentality of the Government of Punjab because the contents of the 
agreement signed between them specifically provide that “fares” in respect 
of the journey on the routes will be determined from time to time with the 
consultation of the Regional Transport Authority, therefore, according to 
CA.224 of 2003, etc. 
42
him the system of franchise is permissible under proviso (c) of Article 18 of 
the Constitution.  In support of his argument he relied upon Aitchison 
College Lahore     v.    Muhammad Zubair (PLD 2002 SC326). 
 
Learned counsel appearing for the appellants seriously controverted 
this view point.  Similarly Mr. Aftab Gul learned ASC, who also appeared 
on behalf of Varan Tours did not subscribe to his contention. However, we 
have examined the proposition put forward by him but we are persuaded to 
disagree with his proposition because the Varan Tours is a private concern, 
who has got franchise on route No.1 and 7 of Rawalpindi - Islamabad, and 
neither the Federal Government nor the Provincial Government controls its 
business nor the company is setup or established by them. As far as the 
judgment cited by the learned counsel is concerned it is completely 
distinguishable because in that case Government of Punjab had taken over 
the administration of Atchison College under the control of Education 
Department by amending its Rules of Business.   
34. 
There is no cavil with the proposition that the Federal Government 
or the Provincial Government or a Corporation controlled by any one of 
them can create a monopoly to the exclusion of any other person for the 
purpose of running a business, as per the mandate of clause (c) of the 
proviso to Article 18 of the Constitution, as held in Kondala Rao    v.   
Andhra Pradesh S.R.T. Corporation  (AIR 1961 SC 82). Relevant paras 
therefrom are reproduced herein below for convenience:- 
“(9)  
The only question is, how far and to what extent 
Art. 19(6) secures the validity of Ch. IVA of the Act from 
attack that it offends against Art. 19(1)(g)? Learned 
Counsel for the petitioners contends that Art. 19(6)(ii) 
provides only for partial exclusion  of citizens, that is, 
the exclusion of a certain class of persons as a whole 
and not far partial exclusion of some among the same 
class. As S. 68C, the argument proceeds, enables the 
State Transport Undertaking to frame a scheme for 
CA.224 of 2003, etc. 
43
excluding some among the same class, the said provision 
is not saved by Art. 19(6) of the Constitution. Relevant 
portions of S. 68C of the Act read:  
“Where any State transport undertaking 
is of opinion that ........ it is necessary in 
the public interest that road transport 
services in general or any particular 
class of such service in relation to any 
area or route or portion thereof should 
be run and operated by the State 
transport undertaking, whether to the 
exclusion, complete or partial, of other 
persons or otherwise...........”.  
 
Under this section a scheme may be framed in respect of 
road transport service in general or in respect of a 
particular class of such service empowering the State 
Transport Undertaking to run the said service; it may be 
in relation to any area or route or a portion thereof; it 
may also be to the exclusion of all or some of the 
persons running the said service in general or a 
particular class of it. The section enables the State to 
take over a particular class of a service, say, the bus 
service, and exclude all or some of the persons doing 
business in that class of service. Learned counsel says 
that this section confers a wide power beyond the 
permissible limits of Art. 19(6)(ii) of the Constitution. To 
State it differently, the argument is that while Art. 
19(6)(ii) does not enable a partial exclusion of some 
among the same class of service, S. 68C permits the said 
exclusion.  
(10) 
The answer to this argument depends upon the 
true meaning of the provisions of the said Article. Under 
sub-cl. (ii) of Art. 19(6), the State can make a law 
relating to the carrying on by the State or by a 
corporation, owned or controlled by the State, of any 
particular business, industry or service, whether to the 
exclusion, complete or partial, of citizens or otherwise. 
Article 19(6) is only a saving provision and the law 
made empowering the State to carry on a business is 
secured from attack on the ground of infringement of the 
fundamental rights of a citizen to the extent it does not 
exceed the limits of the scope of the said provision. Sub-
cl. (ii) is couched in very wide terms. Under it the State 
can make law for carrying on a business or service to 
the exclusion complete or partial of citizens or 
CA.224 of 2003, etc. 
44
otherwise. The law, therefore, can provide for carrying 
on a service to the exclusion of all the citizens; it may 
exclude some of the citizens only; it may do business in 
the entire State or a portion of the State, in a specified 
route or a part thereof. The word “service” is wide 
enough to take in not only the general motor service but 
also the species of motor service. There are, therefore, 
no limitations on the State’s power to make laws 
conferring monopoly on it in respect of an area, and 
person or persons to be excluded. In this view, it must be 
held that S. 68C does not exceed the limits prescribed by 
Art. 19(6) (ii) of the Constitution”. 
 
 
 
35. 
Syed Ali Zafar, learned counsel for one of the private respondents 
argued that Government of Punjab in pursuance of a policy to eliminate 
congestion of traffic, to reduce inconvenience to the public at large during 
journey, to control pollution as well as to check unfortunate degradation of 
human being, introduced the franchise system of transport, therefore, 
interference in the policy decision of the Government is not called for. 
Reliance in this behalf was placed by him on Deputy Assistant Iron and 
Steel Controller, Madras    v.   L. Manickchand Proprietor K.M 
Corporation  (AIR 1972 SC 935). 
 
It may be noted that in the above said judgment it was held that 
import licence cannot be claimed as of right. Similarly, in State of 
Maharashtra   v.  Lok Shikshan Sanstha (AIR 1973 SC 588), it was 
held as under:- 
“the question of policy is essentially for the State 
and such policy will depend upon an overall 
assessment and summary of the requirements of 
residents of a particular locality and other 
categories of persons for whom it is essential to 
provide facilities for education. If the over all 
assessment 
is 
arrived 
at 
after 
a 
proper 
classification on a reasonable basis, it is not for the 
CA.224 of 2003, etc. 
45
Courts to interfere with the policy leading up to 
such assessment.”  
In the case of Government of Pakistan      v.   Zamir Ahmed Khan (ibid), 
it was observed as under:- 
“the amendment made on 10th August 1972 in Item 
No.49 signified a change in policy and the respondent 
was informed that he was being refused licence because 
of “the change in policy” and not because of any other 
reason. On these facts, it is not possible to subscribe to 
the proposition that a writ of mandamus would lie 
against Licencing Authority, which would have the effect 
of defeating the policy, competently made by the Federal 
Government.”      
  
Learned counsel also relied upon on M/s Illahi Cotton Mills (ibid).  
 
We have gone through the judgments cited by the learned counsel. 
The facts narrated therein are distinguishable. However, we are of the 
opinion that in the instant case, right of franchise on specified routes has 
not been granted to private respondents in pursuance of any directives of 
the policy but in accordance with provisions of Section 69-A of the 
Constitution and this Court is not debarred to examine its validity on the 
touchstone of Article 8 of the Constitution, because if any law is 
promulgated in derogation of  fundamental rights, it would be declared 
void because at the cost of fundamental rights, guaranteed by the 
Constitution, the executive Government is not empowered to frame a policy. 
Resultantly, the argument so raised by learned counsel has no force.  
36. 
Mr. Tariq Mehmood, learned counsel for one of the respondents 
contended that competent authority granted franchise of specified routes to 
respondents by adopting a transparent procedure as the offers/applications 
were invited through private media and competition was allowed, following 
the principle laid down in the case of  Chairman RTA     v.   Pak. Mutual 
CA.224 of 2003, etc. 
46
Insurance Co.  (PLD 1991 SC 14). He further argued that appellants have 
been granted alternative routes, therefore, they should have no grievance 
against grant of franchise on specified routes to the respondents and for 
this reason, appeals are liable to be dismissed. In this behalf reliance was 
placed on Administrator Market Committee Kasur (ibid).   
 
The contentions raised by the learned counsel do not call for 
examination in depth for the reason that if a law, under which certain 
proceedings have been drawn, fails to stand the test of Article 8 of the 
Constitution and is liable to be declared void then any proceedings drawn 
under it, howsoever, solemn, cannot sustain in law.  
37. 
It may be observed that so far we have considered the validity of 
Section 69-A of the Ordinance on the touchstone of Article 8 and 18 of the 
Constitution. We have not entered into factual controversy with regard to 
proper exercise of discretion by the competent authority, in the discharge of  
its functions under Section 69-A of the Ordinance and its effect, whether 
alternative routes have been granted to the appellants to operate their 
stage carriages and the controversy which has been raised in respect of 
grant of franchise on the specified routes with mala fide intention, as 
contended by  Mr. Nasir  Saeed  Sheikh,  learned  counsel  for appellants in 
Civil Appeal No.226 of 2003, and my Mr. Aftab Gul, learned ASC for one 
of the franchise holders, for the reason that in impugned judgments, 
learned High Court has not attended to the factual aspects of the case. In 
our view, it would not be fair and in the interest of justice to enter into 
factual controversy for the first time also because it would be against the 
well settled practice of this Court.  
38. 
Learned counsel for appellants, also argued that the provisions of 
Section 69-A of the Ordinance are discriminatory in nature because by 
granting franchise to the respondents, contrary to the provisions of Article 
CA.224 of 2003, etc. 
47
18 of the Constitution, Government has violated Article 25 of the 
Constitution, which guarantees equal protection of law amongst the 
persons, similarly placed. To elaborate their arguments, they contended 
that the respondents to whom franchise has been granted on specified 
routes are being treated differently because their induction has excluded 
the appellants from the same business. Reliance  has been placed by them 
on I.A. Sharwani and others    v.   Government of Pakistan through 
Secretary Finance Division, Islamabad (1991 SCMR 1041). 
 
 On the other hand learned counsel for respondents contended that 
the competent authority is empowered to make reasonable classification, 
which is permissible because equal protraction of law does not envisage 
that every citizen is to be treated alike in all circumstances, therefore, 
classification under Section 69-A of the Ordinance, is not contrary to 
Article 25 of the Constitution.  
 
It may be noted that appellants and the respondents both are 
similarly placed being owners of stage carriages and prior to the grant of 
franchise to the private respondents, appellants were in possession of valid 
route permits for plying their stage carriages on the specified routes but 
their route permits stood cancelled due to grant of franchise to the 
respondents in view of the provisions of Section 69-A of the Ordinance. It 
means that Section 69-A of the Ordinance has created a classification 
between franchise holders and appellants-transporters. Such classification 
is not permissible under Article 25 of the Constitution, because the 
differentia between both the classes must have rational nexus to the object, 
sought  to be achieved by such classification. As such we are of the opinion 
that Section 69-A of the Ordinance is also violative of Article 25 of the 
Constitution.  
CA.224 of 2003, etc. 
48
39. 
In view of above discussion, we are persuaded to observe that it is 
not too late for the Government of Punjab:- 
a) 
To 
suitably 
amend 
the 
Motor 
Vehicle 
Ordinance, 1965, if need be, in the public 
interest and welfare, consistent with the 
provisions of Article 8 of the Constitution of 
Islamic Republic of Pakistan, ensuring fair 
opportunity to the transporters to conduct their 
business freely, with a provision of better 
facilities of travel to the passengers in a 
dignified manner, through reliable stage 
carriages. 
b) 
It has been noticed that the respondents while 
obtaining franchise on specified routes have 
obtained 70% loans against their equity of 
30%, therefore, the Government may examine 
to run transport on the specified routes itself, as 
contemplated by the proviso (c) of Article 18 of 
the Constitution.  
c) 
Government may take any other constitutional 
or administrative steps, which are deemed fit by 
it in the public interest for solving the problems 
of transport in the urban areas of the province 
of Punjab. 
  Thus for the foregoing reasons, the appeals/petition under Article 
185(3) of the Constitution of Islamic Republic of Pakistan are accepted. 
Section 69-A of the Motor Vehicle Ordinance, 1965 (as amended) is hereby 
declared ultra vires of the Constitution of Islamic Republic of Pakistan, as 
a consequence whereof the impugned judgments are set aside. However, 
existing arrangements may continue for a period of four months enabling 
the Provincial Government to take appropriate legislative/administrative 
measures in accordance with Constitution and law. No order as to costs.  
CA.224 of 2003, etc. 
49
Herein above are the reasons for the short order dated  
29th October 2004. 
 
 
        
   
