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Writ Petition No. 1485 of 1963, decided on 8th May 1964.

Ss. 57(3), 64(a) 8c 64(f )-Representation in writing within prescribed time under S. 57(3)-Whether sine qua non for right of appeal under S. 64 (f ).

A Regional Transport Authority, after inviting applications for the grant of three permanent stage carriage permits on a certain route, granted one route permit each to S, Band M three of the applicants. S felt satisfied with the grant but B and M preferred appeal against the decision before the appellate Authority under section 64 on the ground that one permit to each of them was un-economical. The appellate Authority while disposing of the appeals of B and M cancelled the route permit granted to S, holding that he was a rank outsider on the route. The case was remanded to the Regional Transport Authority to reconsider the entitlement of the allotment of the permit vacated by S. Aggrieved by the order of the appellate Authority S filed a writ petition wherein it was argued before the High Court that since B and M did not make any representation as required under subsection (3) of section 57 of the Motor Vehicles Act, 1939 against the application of S for permits before the Regional Transport Authority, they had no locus standi to prefer appeal to the appellate Authority:

section 64 (a) confers a right of appeal on a person aggrieved by the refusal of the Regional Transport Authority to grant a permit. The grant of a permit to one of the applicants is tantamount to a refusal of the permit to the others. This refusal may be with respect to a part or whole of the grant to be made by the Regional Transport Authority and an applicant who has been partly successful in securing some of the route permits has a locus standi under section 64(a) of the Act to appeal for the grant of the remaining permits which were refused to him. Moreover, the fact that a transport operator has applied for the grant of all the permits advertised by the Authority to the exclusion of his rivals necessarily implies that he is thereby objecting against any grant of those very permits to the other applicants. He opposed the grant of any of the permits to the remaining applicants at the time of the hearing before the Regional Transport Authority and is a person who represented against the grant within the meaning of clause (f) of section 64 and has a right of appeal against the grant made to his rivals. It is not necessary that a person who had opposed the grant of the permit before the Regional Transport Authority at the hearing of the case should also have made a formal representation in writing against the applications as required by subsection (3) of section 57 of the Act. The opposition by a person con templated by section 64 (f) of the Act so as to confer a right of appeal on him is not necessarily confined to the representation against the grant made under subsection (3) of section 57 of the Act. Any narrow interpretation of subsection (f) of section 64 of the Act is likely to cause hardship and lead to incongruous results.

Qazi Inayatullah and others v. The Province of West Pakistan and others P L D 1956 Pesh. 33 distinguished.

S. 64 Merely confers right of appeal on aggrieved person and does not control or define scope of powers vested in appellate Authority-Appellate authority competent to pass all orders which authority trying original cause should or ought to have made Power to remand-Inherent in appellate tribunal.

Continuation of original cause.

S. 47-Provides relevant considerations for grant of route permits-Policy decisions taken by authorities-Can neither override provisions of law nor confer any vested right in individual to demand permit on particular route.

Karam Elahi Chauhan and Arshad Hassan for Petitioner.

Ata Ullah Sajjad, Additional A.-G. assisted by Mahmood Zaman for Respondents Nos. 1 and 6.

Syed Muhammad Zafar and Gul Muhammad Khan for Respondent No. 2.

Nemo for Respondents Nos. 3 and 4.

Fazal-i-Hussain for M. Saleem Chaudhary for Respondent No. 5.

Date of hearing: 8th May 1964.

The Regional Transport Authority, Lahore, invited applications for the grant of three permanent stage carriage permits on Lahore-Gojra via Sheikhupura--Shorkot route and a large number of the transporters including the petitioner applied for these permits. Only two of the transport operators, namely, Pakistan Lyallpur Samundari Transport Company Limited, Lyallpur, and Khalid Transport Company Limited, Gojra, in due course, lodged their objections against the application of the petitioner for the permits. The Regional Transport Authority, in its meeting held on the 12th of August 1963, decided to grant one permanent stage carriage permit each to the petitioner, respondent No. 2 and respondent No. 3 and the remaining applications were rejected. The petitioner felt satisfied with the grant and did not file any appeal. Respondents Nos. 2 and 3 preferred their respective appeals against this decision before the appellate Authority, Member Board of Revenue, West Pakistan, Lahore, on the ground that one route permit each to them was uneconomical and that they should have been granted more than one route permit. No grant was made in favour of respondents Nos. 4 and 5 by the Authorities and they also went in appeal against the decision. All these appeals were heard and disposed of together by the appellate Authority by his order dated the 5th of November 1963 lie cancelled the grant of one permit to the petitioner on the ground that there was no justification for the Regional Transport Authority to bring in the petitioner, who was a complete outsider on this route where the other existing operators were already plying their buses. As regards the appeals of respondents Nos. 2 to 5, the learned Member Board of Revenue remanded the case to the Authority to reconsider their entitlement for the allotment of the permit thus vacated by the petitioner.

2. This writ petition is by Messrs Shahmir Transport Company Limited. It is directed against the order passed by the appellate Authority on the 5th of November 1963. It has been alleged by the petitioner that respondents Nos. 2 to 5 did not make any representation as required under subsection (3) of section 57 of the Motor Vehicles Act, 1939, against the application of the petitioner for the permits, before the Regional Transport Authority, Lahore, and therefore, they had no locus standi to prefer any appeal to the appellate Authority. It has been further alleged that there is an apparent inconsistency in the order of the appellate Authority inasmuch as the appeals of respondents Nos. 2 and 3 were dismissed on the ground that they were not entitled to the grant of more than one permit and on the other hand in the concluding paragraph of the judgment on appeal, the learned Member Board of Revenue while canceling the permit granted to the petitioner, remanded the case of respondents Nos. 2 and 3 as well to the Regional Transport Authority for the grant of the permit vacated by the petitioner to any one of the deserving respondent from amongst respondents Nos. 2 to 5.

3. Section 57 of the Motor Vehicles Act (VI of 1939) lays down the procedure in applying for the permits. Under sub section (1) an application for a contract carriage permit or a private carrier's permit may be made at any time. An applica tion for a stage-carriage permit has to be made not less than six weeks before the date on which it is desired that the permit shall take effect, or, if the Regional Transport Authority appoints a date for the receipt of such application, on such date. According to subsection (3) of that section, on receipt of application for stage-carriage permit, the Regional Transport Authority shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representa tions in connection therewith may be submitted to the Authority and the date, the time and place at which the application along with the representation, if received, will be considered. Sub section (4) provides that no representation in connection with an application referred to in subsection (3) shall be considered by the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation. Subsection (5) lays down that the Regional Transport Authority shall dispose of the application at a public hearing at which the applicant and the person making the representation shall have an opportunity of being heard.

4. The appeals against the orders of the Regional Transport Authority under the Act are provided in section 64, and clauses (a) and (f) of that section which are relevant for the purposes of this petition are reproduced below: ----

"64 . . . . . . Any person---

(a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit or by any condition attached to a permit granted to him, or

(b)

(c)

(d)

(e)

(f) being a local authority or police authority or an associa tion which, or a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto, or

(g)

may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard."

According to the learned counsel for the petitioner, under clause (f) above, the right of appeal in the case of the existing transport operators on the route in question is confined to those who made their representations in writing against the proposed grant in pursuance to the notice published under section 57 (3) of the Act. In other words, according to the learned counsel, a representation in writing within the prescribed time under section 57 (3) of the Act is a sine qua non for a right of appeal under clause (f) of section 64 reproduced above. Take the case of an existing operator who has applied for the grant of all the permits published on a particular route but the Regional Transport Authority merely grants him only some of those permits and the remaining permits were given to the others. On the argument of the learned counsel for the petitioner, such an operator will have no right of appeal to canvass his claim for the grant of more permits to him unless he is also an objector under section 57(3) of the Act against the applications of his rivals for the grant of permits to them. Supposing there is only one applicant for the grant of a number of permits and the Regional Transport Authority decides to grant only one permit to, him and withholds the rest, can it be said that he has no right of appeal to claim the remaining permit although there was no rival applicant in the field. Again in the case of two rival applicants for the grant of a single permit can it be said that the unsuccessful applicant has no right of appeal simply because he did not make a formal representation in writing under section 57(3) of the Act against the application of his rival. Section 64 (a) confers a right of appeal on a person aggrieved by the refusal of the Regional Transport Authority to the grant of a permit. The grant of a permit to one of the applicants is tantamount to a refusal of the permit to the others, This refusal may be with respect to a part or whole of the -grant to be made by the Regional Transport Authority and an applicant who has been partly successful in securing some of the route units has a locus standi under section 64 (a) of the Act to appeal for the grant of the remaining permits which were refused to him. Moreover, the fact that a transport operator has applied for the grant of all the permits advertised by the Authority to the exclusion of his rivals necessarily implies that he is thereby objecting against any grant of those very permits to the other applicants. He opposed the grant of any of tire permits to the remaining applicants at the time of the hearing before die Regional Transport Authority and is a person who represented against the grant within the meaning of clause (f) of section 64 and has a right of appeal against the grant made to his rivals. It is not necessary that a person who had opposed the grant of the permit before the Regional Transport Authority at the hearing of the case should also have made a formal representation in writing against the applications as required by subsection (3) of section 57 of the Act. The opposition by a person contemplated by section 64(f) of the Act so as to confer a right of appeal on him is not necessarily confined to the representation against the grant made under subsection (3) of section 57 of the Act. An narrow interpretation of subsection (f) of section 64 of the Act is likely to cause hardship and lead to incongruous results.

5. The learned counsel for the petitioner has cited Qazi Inayatullah and others v. The Province of West Pakistan and others (P L D 1956 Pesh, 33) in support of his contention. In that case out of a number of applicants the Provincial Transport Authority granted permits to 124 persons under the Motor Vehicles Act, 1939. The applications of the others were rejected. Nine persons, who were aggrieved by the refusal of the permits appealed to the Home Secretary, the Appellate Authority under the Act, who cancelled all 124 permits and remanded the case for reconsideration ,and for grant of the permits to deserving persons. The High Court in the exercise of its writ jurisdiction quashed the order passed by the appellate Authority. On a reference to section 64 of the Motor Vehicles Act, 1939, the High Court has observed as follows: ----

"By stating separately the persons who can file an appeal under section 64 of the Motor Vehicles Act, in our view the Legislature intended that the appellate authority can only grant that relief to the appellant which he demands but has been refused to him, and which ought to have been granted to him in law and in equity. For example, if a person appeals against the refusal of the Provincial Transport Authority to grant a permit to him, then all that appellate authority can do is, if it arrives at the conclusion that the refusal to grant was not founded on equity or good law, to grant the permit. It cannot be said this power of the appellate authority carries with it the jurisdiction to cancel or revoke the permits of other people either by implication, or because in order to exercise the first power it is necessary to do so."

At another place it has been remarked that :-

"The appellate authority then, if it found that the order of the Provincial Transport Authority was wrong, could grant relief to the appellants by granting them these permits, but the Home Secretary had no authority to cancel or revoke the permits, which had been granted to 124 persons by the Provincial Transport Authority, particularly when he had no appeal before him by any person enumerated in clause (f) of section 64 of the Motor Vehicles Act."

In these circumstances the High Court proceeded to hold that there was no jurisdiction vested in the appellate Authority under section 64 of the Act to remand the case for reconsideration by the Provincial Transport Authority.

6. In that case there was no question about the locus standi of the aggrieved persons to file an appeal under section 64 of the Motor Vehicles Act, 1939, and the High Court was mainly dealing with the powers of the appellate Authority in appeal to remand the case to the subordinate Authority for fresh decision. Even otherwise we are in respectful disagreement with the decision in that case. Section 64 of the Act does not define the scope of the powers vested in the Appellate Authority. It merely confers a right of appeal on an aggrieved person and it does not control the powers of the Appellate Authority within which it can exercise its jurisdiction. It is well known that an appeal is a continuation of the original cause and it is implicit in the exercise of appellate jurisdiction that the appellate Authority can pass all those orders which the Authority trying the original cause should or ought to have made. The power of remand is merely ancillary and incidental to the powers to be exercised by the appellate Authority. It is something inherent in the appellate tribunal. On the reasoning adopted in the above-mentioned case it is difficult to foresee what relief can be granted to the successful' appellant against the refusal of the permits by the lower Authority if the appellate Authority is indeed powerless to cancel the limited number of the permits wrongly granted to the respon dent.

7. The second contention of the learned counsel for the petitioner is not borne out by a careful reading of the appellate order passed by the learned Member Board of Revenue on the 5th of November 1963. There was no outright rejection of the appeals by Messrs Sher Brothers Transport Company Limited and Messrs Majid Transport Company Limited, respondents Nos. 2 and 3, by the appellate Authority and it was nowhere held that they were not entitled to any additional permit. After rejecting the appeal of the petitioner, the appellate Authority in fact allowed the appeals against the petitioner and remanded the case to the Regional Transport Authority to reconsider the entitlement of respondents Nos. 2 to 5, namely, Messrs Sher Brothers Transport Company Limited, Messrs Majid Transport Company Limited, Messrs. Ravi Transport Society Limited; Lahore, and Messrs Tariq Salim Transport Company Limited for the allot ment of the one permit vacated by the petitioner. Thus there is no inconsistency in any part of the impugned order passed on appeal.

8. It has been further argued by the learned counsel for the petitioner that the Regional Transport Authority, Lahore, by its Press-Note dated the 26th of February 1961, had announced its policy for the liberal grant of route permits to limited concerns having six buses of 1956 and above models to operate on any routes of Lahore region. The learned counsel has also pointed out that this decision of the Regional Transport Authority had the blessings of both the Provincial Transport Authority and the Provincial Government. He contends that on the faith of this declaration of Policy by the authorities concerned, the petitioner floated its company on the 15th of September 1961 with an authorised capital of Rs. 5,00,000 and purchased vehicles of 1960 model and, therefore, respondent No. 1 was duty bound to uphold the grant of the route permit to the petitioner We are sure that these policy decisions taken by the authorities do not at all confer any vested right in an individual transporter to demand a permit on a particular route from the Regional Transport Authority or Appellate Authority. The route permits are granted in the light of the various provisions of the Motor Vehicles Act, 1939. The Policy, if any, cannot override the law. Moreover, there is nothing to prevent these authorities to revise their policies from time to time generally or in any particular case. In this connection, the learned Member Board of Revenue has himself observed that the policy of the Central Government referred to in the Press-Note cannot supersede the provisions of the Motor Vehicles Act, which specifically lay down that the convenience of the traveling public is of paramount consideration.

9. The Regional Transport Authority in its meeting held on the 12th of August 1963 had decided to grant one route permit to the petitioner on the grounds that it was a new limited company having no permit in its possession and has got four vehicles in its possession of 1960 model, that the headquarter of the petitioner-Company is at Lahore which is the starting point of the route in question. None of these is a requirement of law for the grant of permits. The relevant considerations for the grant of permits by the Regional Transport Authority are laid down in section 47 of the Act. The interest, convenience and the benefit of the public are of paramount importance, and the other things being equal, the operation by the applicant of other transport services and in particular unremunerative services in conjunction with remunerative services have also to be kept in view. Under ordinary circumstances, the existing transport operator holding permanent permit on the route in question better qualified for the grant than a total stranger. In this case, the petitioner was not even holding any temporary permit on the route in question and could not claim any preferential right to the grant of permit to him as compared with respondents Nos. 2 to 5, who were the existing operators on the routes. We do not see any illegality in the impugned order passed by the Appellate Authority.

10. For the aforesaid reasons, we find no substance in this petition, which is accordingly dismissed. But in view of the circumstances of the case we make no order as to costs.

For reasons to be given later on, this petition is dismissed without any order as to costs. The interim order dated the 2^nd of January 1964 staying the operation of the order of the Appellate Authority stands vacated. Respondent No. 1 and the Regional Transport Authority, Lahore, to be informed accordingly.

K. E. A.

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