Islamabad High Court (IHC) has held that the letter dated 20.06.2019 issued by the Ministry of Communications, whereby the axle load campaign was delayed, was without lawful authority and is declared to be without any legal effect.
The judgment authored by Justice Mian Gul Auragzeb stated that any other order issued by the executive, how high so ever, which is in contradiction to the requirements of the said provisions of the 2000 Ordinance would be equally without lawful authority and of no legal effect.
Any laxity or inertia on the part of the executive or the statutory bodies including National Highway Authority (NHA) and National Highways and Motorways Police (NH&MP) in strictly implementing the requirements of Sections 43, 44, 75 and 83 read with Schedule VI to the 2000 Ordinance would not just be tantamount to dereliction of a statutory obligation but would be actionable wrong.
The judgment said that the loss caused to the exchequer by damage to the motorways and national highways due to violation of the axle load limits prescribed by law ought to be made good from the personal coffers of all those public office-holders and public functionaries who pass orders to exempt or delay the implementation of the axle load regime, prescribed by Statute.
The IHC on 05.07.2019 vide interim order had suspended the operation of the letter dated 20.06.2019 issued by the Ministry of Communications to put the axle load campaign on hold for a period of ninety days.
The petitioner, JZ Enterprises Pvt Limited, had impugned the Ministry of Communications letter dated 20.06.2019.
The bench dismissed the petitions one filed by All Pakistan Transporters Association and Karachi Steel Re-Rolling Mills whereas the second one was filed by Pakistan Ship Agents Association.
The IHC declared that the requirement in Section 43 of the 2000 Ordinance to observe the axle load limits prescribed in Schedule VI to the 2000 Ordinance is mandatory in nature. Consequently, the respondents are directed to perform their statutory obligation by acting strictly in accordance with the requirements of Sections 43, 44, 75 and 83 read with Schedule VI to the 2000 Ordinance without any discrimination. The respondents shall not permit the plying of vehicles on roads, national highways and motorways with loads in excess of those prescribed in the said statute.
Additionally, those violating the axle load limits are to be dealt with in accordance with sections 75 and 83 of the 2000 Ordinance. The respondents are also directed to make all weigh stations on the national highways and motorways operational and also to establish such number of weighing stations as are considered necessary for the enforcement of the mandate pertaining to axle load limits under the 2000 Ordinance.
The judgment noted that the 2000 Ordinance was promulgated almost twenty years ago. This period was long enough for the executive and statutory bodies to have taken appropriate measures for the implementation of the axle load regime or for enforcing Sections 43, 44, 75 and 83 read with Schedule VI to the 2000 Ordinance. The right to travel by road is a well recognized fundamental right. This right can be exercised in a meaningful manner only if the roads and highways are prevented from deterioration caused by the plying of vehicles with loads in excess of the axle load limit fixed by statute.
The 2000 Ordinance was enacted in the public interest, and it is the obligation of the Ministry of Communications and the statutory bodies under its administrative control to ensure that every provision of the said Ordinance is implemented in letter and spirit. The said Ordinance does not give any discretion to the executive (the Ministry of Communications and the bodies under its administrative control) or any public office holder to delay the enforcement of the axle load regime envisaged under the 2000 Ordinance or to exempt any class of persons from its operation. There is no provision in the 2000 Ordinance which empowers the executive to either exempt or defer compliance with the requirements of the said Ordinance. The axle load limits have been fixed by statute and not by an executive fiat. Such limits can be altered only by the legislature by means of an amendment in the 2000 Ordinance and most certainly not by the executive alone.
The requirements of the abovementioned provisions of the 2000 Ordinance and the reluctance on the part of the executive and statutory bodies to implement the axle load regime are mutually exclusive and cannot co-exist. The said provisions of the statute would override any order to the contrary issued by the executive or statutory bodies.
The implementation of the axle load regime is not just a public duty but also a statutory obligation on the part of the executive as well as statutory bodies, including the NHA and the NH&MP.
The executive and the said statutory bodies cannot attribute redundancy to the said statutory provisions by ignoring their duty and obligation to implement the axle load regime under the 2000 Ordinance.