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Writ Petition No. 337 of 1965, decided on 19th December 1966.
Art. 98‑Joint application by several persons‑Objection that joint application is not maintain able raised after two years‑Not entertained.
Ss. 47, 48, 57 & 64 -Appeal‑Declaration or advertisement of route‑Appealable.
The act of declaring the route open on the part of the Regional Transport Authority is the first preliminary act of the series culminating in the grant or refusal of a permit as the case may be. Declaration is thus a part of the grant which is the whole, and no body could possibly feel aggrieved by the mere act of declaring open a route, short of actual grant of permit, inasmuch as several eventualities might supervene before the entire proceedings commencing with the declaration mature into grant of permits which in some cases quite conceivably may not happen at all. For instance a route may be declared open by the Regional Transport Authority which on reconsideration of the matter might in its wisdom revise or rescind the earlier decision. The declared route may be shortened or extended, its course might be changed or the decision may be rescinded altogether. Alternatively having once declared the route open and invited applications, the Regional Transport Authority might take quite long to finalise its decision. Thus, what can really affect adversely the interest of an existing operator is the actual grant of the permit on a particular route and not any other act short of this, much less the mere declaration. It may be pertinent to point out in this regard that the considerations to be kept in view by the Regional Transport Authority under section 47 of the Act are relatable to the grant or refusal of a stage carriage permit and not the declaration of this route permit, as would be clear from the opening sentence of the section. Similarly, the representation mentioned after part (f) of subsection (1) of this section would also be relatable to the grant or refusal and not the mere declaration of the permit. Again, the right of appeal available to an existing operator under clause (f) of section 64 is also in respect of the grant of a permit whereby he feels aggrieved. Significantly enough, even the pharseology employed here is similar, to that used in the concluding portion of subsection (1) of section 47 of the Act. Thus from an objective examination of the scheme of the Act and the relevant provisions thereunder, the definite conclusion can be drawn that the reason why a mere declaratory order had not been specifically mentioned as an appealable order in section 64 of the Act is that it does not per se constitute an independent act giving rise to certain rights and liabilities, and not because a finality attaches to it. Since the real cause of action would accrue to an existing operator only when the permit is actually granted, the term grant is wide enough to include the declaration of the route which is the first priliminary step and an essential pre‑requisite for the grant of the permit. It would thus be absurd to make appealable such a preliminary and a premature act which in the ultimate analysis may or may not mature into a grant. It, therefore, follows that no finality attaches to an order of the Regional Transport Authority declaring a route open which is a mere formality and as such does not become sacrosanct, so as not to be amenable to the appellate jurisdiction of the Member, Board of Revenue. On the contrary, an order of grant will be assailable inter alia on ground of superfluity or want of public requirement of the route so declared, fixing the number of permits to' be granted on it. This of course, is to be subject to the fulfillment of the conditions laid down in clause (f) of section 64, namely, that the appellant, if he is an existing operator should have opposed the grant of the permit.
The proper stage for the filing of representations is not when the route is notified, in this context but when applications are invited.
Clause (a) of section 64 of the Act confers the right of appeal on an unsuccessful applicant who feels aggrieved by the order of refusal. On the other hand, clause (f) of this section gives the right of appeal inter alia to an existing operator who himself is not an applicant but nonetheless has opposed the grant inasmuch as the route is bound to hit his monopoly or otherwise affect his interest adversely when he, according to his own view is fully catering to public transport requirements, and deems the fresh route wholly unnecessary. Thus the only logical conclusion deducible from this would be that the declaration or advertise ment of the route is amenable to appeal and is fully covered by the provisions contained in section 64(f), inasmuch as, it would be wholly immaterial for an existing operator, whether the route for which he himself is not a candidate is given to A' or to B'. In fact this would be the only situation calling for the invocation of the provision contained in section 64(f) in so far as an existing operator is concerned, which otherwise, would have no occasion for being pressed into service.
A limit once fixed by the Regional Transport Authority cannot be increased by the appellate authority, but certainly there can be no such restriction on the decrease of a limit, inasmuch as the appellate authority being administratively superior to the Regional Transport Authority capable of substituting its own judgment would not be confronted in such an eventuality with the legal hurdles that it has to face by ordering an increase, which would result in the nullification of the statutory provisions of section 57.
An objection could be taken in respect of a newly advertised permit on two grounds, namely, the adequacy of the existing services and want of necessity or the number of the permits being in excess of actual requirement. Once it is conceded that an order passed by the Regional Transport Authority fixing the number of permits in excess of actual requirements is assailable in appeal, it would inevitably follows as a necessary corollary from this that an appeal could be preferred against the very declaration of a permit on the ground of total absence or complete want of necessity.
Chittoor Conveyance Corporation v. R. T. A. 1960 Andh L T 156 ; Tariq Transport Co. Lahore v. Sargodha‑Bhera Bus Service P L D 1958 S C 437 ; Messrs Tando Adam Transport Company Ltd, Tando Adam v. Member, Board of Revenue, West Pakistan and others P L D 1964 Kar. 283 ; Abdul Matin v. Ram Kailash A I R 1963 S C 64 and Ikram Bus Service v. Board of Revenue, West Pakistan P L D 1963 S C 564 ref.
S. 47‑Route permit- Survey of route‑Chairman, R. T. A. visiting area and respectable members of public requesting for provision of direct link between two terminii of route‑Formal survey, held, not necessary, in circumstances of case‑West Paki3tan Motor Vehicles Ordinance (XIX of 1965), S. 50(1) (a).
The Chairman's personal visit to the area and the representa tions made by respectable members of the public requesting him to provide direct link between the two terminii of the route, may be deemed to be a sufficient justification for dispensing with the carrying out of a formal survey regarding which unlike the provisions contained in section 50(l)(a) of the Motor Vehicles Ordinance of 1965, there was no statutory provision as such in the Act, except some departmental instructions. No doubt, section 47 would impliedly suggest the necessity of a survey for which no mode was prescribed and it appears that ex facie the declaration of a route may be deemed to have been ordered in view of public necessity assumed by the Chairman, R. T. A. before whom some representations were made when he visited the area as Commissioner. But on the propriety or adequacy of survey and the existence of public necessity, the Member, Board of Revenue, functioning as appellate authority being a superior administrative Tribunal was certainly competent to substitute his own judgment unlike this Court sitting in exercise of writ jurisdiction.
Tariq Transport Co., Lahore v. Sargodha‑Bhera Bus Service PLD 1958 SC 437 ref.
Ss. 64 & 57(3)‑Person not submitting representation against grant of permit‑Cannot raise oral objections at time of consideration of grant of route permit‑Existing operator, opposing grant of permit, can file appeal under S. 64(f).
It is clear from the language of subsection (3) of section 57 of the Act that the applications for the grant of permits and the representations received in opposition to such grant are to be considered simultaneously. A party which has not submitted timely representation in opposition to the grant has obviously no locus standi to raise oral objections at the time of consideration, except of course, an applicant who by implication may be deemed to be opposing the grant in favour of the rival candidate and as such need not specifically send representations.
The Government Transport Service being an existing operator on the route in question had opposed the grant of permits, and as such was competent to file an appeal under section 64(f) of the Motor Vehicles Act, in which inter alia the Authority's decision to throw open the route for the grant of permit can also be challenged.
Messrs Shamshir Transport Company Ltd. v. Member, (Colonies and Transport) Board of Revenue, West Pakistan P L U 1964 Lah. 710 ref.
Zia Mahmood for Petitioner.
Nemo for Respondent No. 1.
S. Abid Hussain for Respondent No. 5.
Date of heating: 16th November 1966.
This judgment shall dispose of Writ Petitions Nos. 337 of 1965, 1435 and 1467 of 1964, filed under Article 98 of the Constitution and involving similar questions of fact and law.
2. Writ Petition No. 337 of 1965 filed by the Ex‑Servicemen Public Transport Co. Jhelum, and Writ Petition No. 1435 of 1964, jointly filed by Messrs Jet Transport Company and Chakwal Transport Company are directed against the same order of the Member, Board of Revenue, functioning as Appellate Authority under the Motor Vehicles Act (hereinafter called the Act), whereby he cancelled one permit each of the petitioners in the last mentioned petition, on Chuha Sayyedan Shah‑Lahore via Chakwal route, granted by the Regional Transport Authority, Rawalpindi on 21st of January 1964. This order disposed of thirteen appeals of which appeal No. 283 was filed by the Government Transport Service, contending that in fact there was no public necessity for the grant of permit on the route in question. In the remaining twelve appeals the contention was that the appellants cash had not been considered on merits and that the Regional Transport Authority had given no reasons for the decision under appeal. It is partinent to point out that each of these twelve appellants claimed the route in question on the ground of better qualifica tions. But taking the view that there was no necessity of any permits at all on the Chuha Sayyadan Shah route, the learned Member, Board of Revenue allowed the appeal filed by the Government Transport Service and cancelled the permits of the aforesaid recipients. The other twelve appeals were, however, dismissed.
3. The grievance of the Ex‑Servicemen Public Transport Company, petitioner in Writ Petition No. 337 is that the Regional Transport Authority, Rawalpindi, in its meeting held on 12th and 13th of August 1963, on a representation made by it in the first instance decided to grant two temporary route‑permits to it on Chuha Sayyedan Shah‑Lahore via Chakwal route, but later on 16th of August 1963, on re‑consideration of its earlier decision, cancelled the same, but simultaneously with it decided to throw open two 'B' part permits on this route and invited applications for the same. It was contended that the original order of the Regional Transport Authority and the appellate order of the Member, Board of Revenue were illegal and without lawful authority, and should be declared as such, with a direction to the former to consider the petitioners' case afresh on merits.
4. The petitioners in Writ Petition No. 1435 of 1964, 'Jet Transport Company' and the 'Chakwal Transport Company' being recipients of the permits in question obviously felt aggrieved by the cancellation of the permits and, therefore, challenged the legality of the impugned order.
5. Following, however, were the common contentions raised by the learned counsel for the petitioners in both the cases:
(1) that the decision of the Regional Transport Authority throwing open the routes under section 48 of the Act was not amenable to appeal under section 64 of the Act, and, as such, the appellate authority was not competent to reverse this order which had attained finality.
(2) that assuming an appeal was competent against an order of declaration of routes, the Government Transport Service being neither an existing operator, nor having filed objections under section 57 of the Act had no locus standi to file an appeal.
(3) that the appellate order was without jurisdiction inasmuch as, the Member, Board of Revenue had laken into consideration extraneous matters, namely, the mode and method of survey and the interest of Government Transport Service, which have no legal basis.
6. Before proceeding to examine these contentions, we would like to dispose of a preliminary objection raised by the learned counsel for the respondents to the maintainability of petition No. 1435 of 1964, on the ground that it had been jointly filed by two petitioners. The objection can be brushed aside on the simple ground that it is being raised at a rather late stage, as the petition was admitted as far back as 9th of October 1964.
7. Coming now to the first contention which in fact is the main question for determination in the case, namely, the appeal ability of the order of the Regional Transport Authority, declaring open a certain route, we have to examine the entire scheme of the Act itself. Section 47 of the Act lays down the general principles and the relevant considerations, which the Regional Transport Authority has to keep in view, while granting or refusing a stage carriage permit to an applicant. They relate mostly to the interest and convenience of the traveling public, e.g. the availability or adequacy of the existing road passenger transport services, the benefit of localities sought to be served, the operation by the applicant of other transport services, the condition of roads, and representations if any made by the existing operators, etc. The next section 48 is supplementary to section 47, and deals with the powers of the Regional Transport Authority regarding matters incidental to the grant of a permit, such as limiting the number of stage carriages, issuing a permit in respect of a particular stage carriage or a particular service of the stage carriages regulation of timings, attachment of any of the prescribed conditions, etc. Section 57 of the Act lays down the details of the procedure for making applications, inviting objections and representations and their mode of disposal. Section 64 deals with appeals, laying down the conditions of filing an appeal and the orders against which it could be prefer red. For a proper appreciation of the correct position these provisions are reproduced in the same sequence.
"47.‑(1) A Regional Transport Authority shall, in deciding whether to grant or refuse a stage carriage permit, have regard to the following matters, namely‑
(a) the interest of the public generally;
(b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;
(c) the adequacy of existing road passenger Transport Services between the places to be served, the fares charged by those services and the effect upon those services of the service proposed;
(d) the benefit to any particular locality or localities likely to be afforded by the service;
(e) the operation by the applicant of other transport services and in particular of unremunerative services in conjunction with remunerative services; and
(f) the condition of the roads included in the proposed route or routes;
and shall also take into consideration any representations made by persons already providing road transport facilities along or near the proposed route or routes or by any local authority or police authority, within whose jurisdiction any part of the proposed route or routes lies or by any association interested in the provision of road transport facilities.
(2) A Regional Transport Authority, shall refuse to grant a stage carriage permit if it appears from any time table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened:‑
Provided that before such refusal an opportunity shall be given to the applicant to amend the time table so as to conform to the said provisions."
48. A Regional Transport Authority, may, after considera tion of the matters set forth in subsection (1) of section 47‑--
(a) limit the number of stage carriage or stage carriages of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region;
(b) issue a stage carriage permit in respect of a particular stage carriage or a particular service of stage carriages;
(c) regulate timings of arrival or departure of stage carriages whether they belong to a single or more owners; or
(d) attach to a stage carriage permit any prescribed condition or any one or more of the following conditions, namely,‑
(i) that the service specified in the permit shall be commenced not later than a specified date and be continued for a specified period ;
(ii) that the service may be varied only in accordance with specified conditions;
(ii‑a) that the stage carriage or stage carriages shall be used only on specified routes or in a specified area;
(iii) that copies of the fare table and time table shall be exhibited on the stage carriage and that the fare table and time table so exhibited shall be observed ;
(iv) that not more than a specified number of passengers and not more than a specified amount of luggage shall be carried on any specified vehicle at any one time;
(v) that within municipal limits and in such other areas and places as may be prescribed passengers shall not be taken up or set down at or except at specified points; or
(vi) that tickets shall be issued to passengers for the fares paid."
"57.‑(1) An application for a contract carriage permit or a private carrier's permit may be made at any time.
(2) An application for a stage carriage permit or a public carrier's permit shall 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 dates for the receipt of such applications, on such dates.
(3) On receipt of an application for a stage carriage permit or a public carrier's permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date, not being less than thirty days from such publication, on which and the time and place at which, the application and any representations received will be considered.
(4) 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.
(5) When any representation such as is referred to in sub section (3) is made, 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 either in person or by a duly authorised representative.
(6) When any representation had been made by the persons or authorities referred to in section 50 to the effect that the number of contract carriages for which permits have already been granted in any region or any area within a region is sufficient for or in excess of the needs of the region or of such area, whether such representation is made in connection with a particular application for the grant of a contract carriage permit or otherwise, the Regional Transport Authority may take any such steps as it considers appropriate for the hearing of the representation in the presence of any person likely to be effected thereby.
(7) When a Regional Transport Authority refuses an applica tion for a permit of any kind, it shall give to the applicant in writing its reasons for the refusal."
8. Having carefully examined the scheme of the statute, we are of the view that the act of declaring the route open on the part of the Regional Transport Authority is the first preliminary act of the series culminating to the grant or refusal of a permit as the case may be. Declaration is thus a part of the grant which is the whole, and no body could possibly feel aggrieved by the mere, act of declaring open a route, short of actual grant of permit B inasmuch as several eventualities might supervene before the entire proceedings commencing with the declaration mature into grant of permits which in some cases quite conceivably may not happen at all. For instance a route may be declared open by the Regional Transport Authority which on reconsideration of the matter might in its wisdom revise or rescind the earlier decision. The declared route may be shortened or extended, its course might be changed or the decision may be rescinded altogether. Alternatively having once declared the route open and invited applications the Regional Transport Authority might take quite long to finalise its decision. Thus, what can really affect adversely the interest of an existing operator is the actual grant of the permit on a particular route and not any other act short of this, muchless the mere declaration 1t may be partinent to point out in this regard that the considera tions to be kept in view by the Regional Transport Authority under section 47 of the Act are relatable to the grant or refusal of a stage carriage permit and not the declaration of the route permit, as would be clear from the opening sentence of this section. Similarly, the representation mentioned after part (f) of subsection (1) of this section would also be relatable to the grant or refusal and not the mere declaration of the permit. Again, the right of appeal available to an existing operator under clause (f) of section 64 is also in respect of the grant of a permit whereby he feels aggrieved. Significantly enough, even the phraseology employed here is similar, to that used in the concluding portion of subsection (1) of section 47 of the Act. Thus from an objective examination of the scheme of the Act and the relevant provisions thereunder, we have come to the definite conclusion that the reason why a mere declaratory order had not been specifically mentioned as an appealable order in section 64 of the Act is that it does not per se constitute an independent act giving rise to certain rights and liabilities, and not because a finality attaches to it. Since the real cause of action would accrue to an existing operator only when the permit is actually granted, the term grant is wide enough to include the declaration of the route which is the first preliminary step and an essential pre‑requisite for the grant of the permit. It would thus be absurd to mare appealable such a preliminary and a premature act which in the ultimate analysis may or may not mature into a grant. It, therefore, follows that no finality attaches to an order of the Regional Transport Authority declaring a route open which is a mere formality and as such does not become sacrosanct, so as not to be amenable to the appellate jurisdiction of the Member, Board of Revenue. On the contrary, an order of grant will be assailable inter alia on ground of superfluity or want of public requirement of the route so declared, fixing the number of permits to be granted on it. This, of course, is to be subject to the fulfilment of the conditions laid down in clause (f) of section 64, namely, that the appellant, if he is an existing operator should have opposed the grant of the permit. An Indian authority Chittoor Conveyance Corporation v. R. T. A. (1960 Andh L T 156) lends further support to this view in which it was held that:
"The question of objections or representations (by the existing operators) arises not at the time when recommendation is made or decision taken in the matter of opening of new routes or varying the existing routes or the putting of additional routes but at the time when applications for issue of permits are considered."
Notwithstanding any practice to the contrary we are of the view that the proper stage for the filing of representations is not when the route is notified, in this context but when applications are invited. It would also be advantageous to make a reference to the following observation made by Muhammad Munir, C. J. in Tariq Transport Co., Lahore v. Sargodha‑Bhera Bus Service (P L D 1958 S C 437).
"As regards the representation mentioned in section 47 and that in section 57, the High Court seems to take the view that these are two independent representations to be made at different stages. This is not correct. Section 47 deals only with what matters the Regional Transport Authority should bear in mind while considering the question of grant or refusal of a permit, while section 57 prescribes the procedure for the making of a representation. A representation under section 47 must, therefore, be made in the manner detailed in section 57 and no separate representation is contemplated by section 47."
9. The question could also be viewed from another aspect. Clause (a) of section 64 of the Act confers the right of appeal on an unsuccessful applicant who feels aggrieved by the order of refusal. On the other hand, clause (f) of this section gives the right of appeal inter alia to an existing operator who himself is not an applicant but nonetheless has opposed the grant, inasmuch as the route is bound to hit his monopoly or otherwise affect his interest adversely when he, according to his own view is fully catering to public transport requirements, and deems the fresh route wholly unnecessary. Thus the only logical conclusion deducible from this would be that the declaration or advertise went of the route is amenable to appeal and is fully covered by the provisions contained in section 64(f), inasmuch as, it would be wholly immaterial for an existing operator, whether the route for which he himself is not a candidate is given to A' or to B'. In fact this would be the only situation calling for the invocation or the provision contained in section 64 (f) in so far as an existing operator is concerned, which otherwise, would have no occasion) for being pressed into service.
10. An argument was raised that since the declaring open of a certain route is invariably accompanied by the simultaneous fixation of the limit of permits to be granted, therefore, challenging the order of declaration throwing open a certain route and fixing the permits to be granted thereon would in effect, amount to challenging an order of the Regional Transport Authority, limiting the number of stage carriages on the route in question and would be hit by the provisions of section 48 (a) of the :pct, which empowers the Regional Transport Authority to limit the number of stage carriages on any specified route. In support of this contention, reference was made to Messrs Tando Adam Transport Company Ltd., Tando Adam v. Member, Board of Revenue, West Pakistan and others (P L D 1964 Kar. 283). In this case the following two questions were referred to a Full Bench for decision:
"(1) Whether the order of the Regional Transport Authority fixing the number of the route permits under the Motor Vehicles Act is final and cannot be questioned in Appeal
(2) Whether the Board of Revenue in an appeal against the refusal to grant route permit can increase the number of permits and create an extra route and confer the permit on the applicant "
After considering the relevant case‑law, A. S. Farooqui, J. who delivered the Full Bench judgment observed as follows:‑
"In view of our conclusion, our answer to the first question referred to us by the Division Bench is that the limit fixed by the R. T. A. under section 48(a) of the Act regarding the route permits cannot be questioned in appeal. Our answer to the second question is that the Board of Revenue in an appeal against the refusal to grant a permit, cannot increase the number of permits so as to grant one to the appellant."
It may be pointed out that Mr. Salim Chaudhry who appeared before us on behalf of Pak Valley Transport Company Ltd., Lahore, respondent No. 10, in Writ Petition No. 1435 of 1964, and supported the petitioner's case, also appeared before the Full Bench in Karachi case on behalf of Messrs Chaudhry Trans port Company, one of the respondents to whom in appeal, the Member, Board of Revenue have granted another permit, allowing at the same time Messrs Tando Adam Transport Co., Ltd., to retain the impugned permit granted to it by the Regional Transport Authority. Since it was a case of increase of limit fixed by the Regional Transport Authority, the extra grant by the appellate authority obviously rendered nugatory the provisions of sections 47 and 57(3) of the Act laying down the procedure for making applications and inviting representations etc. inasmuch as at the appellate stage there was no occasion for the fulfillment of these statutory requirements which could not be by‑passed. We are in respectful agreement with the line of reasoning adopted by the learned Judges. Mr. Saleem Chaudhry, obviously took up before us a position inconsistent with the one taken by him before the Full Bench in that case. He had clearly conceded before the learned Full Bench that the appellate authority had the power to decrease the number of permits. This would be clear from the following observation of their Lordships:
"Mr. Saleem Chaudhry next contended with reference to clause (f) of section 64 that the Appellate Authority had power to decrease the number of permits and it was urged that if it had that power, it must also be held to have the power to increase it. There is no force in this argument. Clause (f) merely enables a party to take an appeal to the Appellate Authority if its representation contemplated in section 47 has been rejected by the R. T. A. that is, if a representation is made by a local authority or a person providing transport facilities against the grant of a permit and the permit is granted notwithstanding that opposition the party aggrieved would have the right to go in appeal. Section 64(f) therefore merely provides a class of case in which an appeal is permitted. It does not give the power to the Appellate Authority to increase the limit fixed by the R. T. A. under section 48(a)."
Their lordships then proceeded to discuss the Indian authorities cited by Mr. Saleem Chaudhry in support of his contention that the limit fixed by the Regional Transport Authority could be increased, but these authorities had been reversed by a judgment of the Supreme Court of India delivered in Abdul Matin v. Ram Kailash (AIR 1963 S C64). Finally, their Lordships relying on the judgment of our own Supreme Court in Ikram Bus Service v. Board of Revenue West Pakistan (P L D 1963 S C 564), wherein it was ruled that the filing of an application was a condition precedent to the vesting of jurisdiction in appellate authority and that the Regional Transport Authority was bound to observe the procedure laid down in section 57 including the consideration of any representation, answered the reference as stated earlier. While we are in respectful agreement with the learned Judges who were a party to the Full Bench judg ment, which even otherwise, has a binding effect on us, we may observe with utmost respect that their Lordships answer to the first question relating to the finality of the limit of route permits fixed by the Regional Transport Authority is liable to be misinterpreted and create an erroneous impression. No doubt, a limit once fixed by the Regional Transport Authority cannot be increased by the appellate authority, for reasons stated earlier, but certainly there can be no such restriction on the decrease of a limit as was rightly conceded by Mr. Salim Chaudhry before the Full Bench inasmuch as the appellate authority being administratively superior to the Regional Transport Authority capable of substituting its own judgment would not be confronted in such an eventuality with the legal hurdles that it has to face by ordering an increase, which would result in the notification of the statutory provisions of section 57. It would be pertinent to point out that the learned Judges did not find fault with the premises set up by Mr. Salim Chaudhry that the appellate authority could reduce the number of permits but only disagreed with the inference drawn by him on the ground of fallacious reasoning.
11. An objection could be taken in respect of a newly advertised permit on two grounds, namely, the adequacy of the existing services and want of necessity or the number of the permits being in excess of actual requirement. Once it is conceded that an order passed by the Regional Transport Authority fixing p the number of permits in excess of actual requirements is assail able in appeal, it would inevitably follow as a necessary corollary from this that an appeal could be preferred against the very declaration of a permit on the ground of total absence or complete want of necessity.
12. In the famous case of Tariq Transport Company cases, the question whether the functions of the Regional Transport Authority were those of an administrative or a quasi judicial Tribunal was partly discussed by their Lordships of the Supreme Court. Cornelius, J. the present Chief Justice of Pakistan, observed as follows:--
"My reason for thinking that the High Court had no authority to deal with the question raised in the petition of the Sargodha‑Bhera Bus Service is that in my opinion, the functions of a Regional Transport Authority under sections 47 3 and 57 of the Motor Vehicles Act are not in any sense either judicial or quasi‑judicial functions. I base this opinion upon a critical examination of sections 47 and 57 read together and from a consideration of the composition of a Regional Transport Authority, and the manner of its working."
A little further, enumerating the relevant considerations to be kept in view by the Regional Transport Authority in granting or refusing a stage carriage permit as contained in section 47 of the Act, the learned Chief Justice observed as follows:
"On some of these matters the members of a Regional Transport Authority, probably require assistance as to the facts and it seems that this assistance is derived by them from their own resources i.e. by means of investigation conducted through their own staff, or from the written applications and objections, and at a public hearing from the representation made both by the applicants as well as by other persons, and by local or police authorities. The Regional Transport Authority is not required to follow any particular procedure in examining any application or objection, nor do the words of section 47 place any limitation upon their powers to inform themselves, so that it would be difficult to argue that any proceedings of a Regional Transport Authority can be invalidated on the basis that the authority, or any of its members, had received information from any source other than those indicated above. Indeed, on a great many points, members of such an authority will probably be found to rely and indeed might be expected to rely, upon their own knowledge and information, and this circumstance cannot be urged as having a prejudicial effect upon their decision as it suddenly would, if the authority were a judicial or even a quasi‑judicial body."
The above excerpt from the judgment of my Lord the Chief Justice seems to lend support to the petitioners' argument that the Chairman's personal visit to the area and the representations made by respectable members of the public requesting him to I provide direct link between Chua Saidan Shah and Lahore may be deemed to be a sufficient justification for dispensing with the carrying out of a formal survey regarding which unlike the provisions contained in section 50(1)(a) of the Motor Vehicles Ordinance of 1965, there was no statutory provision as such in the Act, except some departmental instructions. No doubt, section 47 would impliedly suggest the necessity of a survey for which no mode was prescribed and it appears that ex facie the declaration of a route may by deemed to have been ordered in view of public necessity assumed by the Chairman, R. T. A. before whom some representations were made when he visited the area as Commis sioner. But on the propriety or adequacy of survey and the existence of public necessity, the Member, Board of Revenue functioning as appellate authority being a superior administrative Tribunal was certainly competent to substitute his own judgment unlike this Court sitting in exercise of writ jurisdiction.
13. Having thus come to the conclusion that an order declaring a permit open on a particular route was appealable under clause (f ) of section 64 of the Act, and that the Full Bench in Messrs Tando Adam Transport Co. Ltd. v. Member, Board of Revenue, relating to the increase of permits did not stand in the way and further that the appellate authority was competent to substitute its own finding on the necessity or otherwise of a permit, we are unable to hold the impugned order as one without lawful authority.
14. The next point which falls for determination is whether the Government Transport Service, Rawalpindi on whose appeal the impugned order was passel fulfilled the conditions laid down in clause (f) of section 64 of the Act, namely, that it was an existing operator on the route, and that it had opposed the grant of the permit. In so far as the question of the Government Transport Service being an existing operator is concerned, the position was vehemently asserted by the learned counsel appearing on its behalf, though denied with equal emphasis in the first instance by the learned counsel for the petitioner. It appears that the learned counsel for the petitioner was satisfied that the Government Transport Service was operating on the route as subsequently this point was not pressed by him.
15. This brings us to the second objection that the Govern ment Transport Service had not filed any representation and the oral objections stated to have been made by it did not constitute a proper opposition to the grant in terms of clause (f) of section 64 of the Act, of which the procedure was prescribed in subsection (3) of section 57 of the Act. For a proper apprecia tion of this contention, it would be necessary to reproduce the latter provision:
"57(3).‑On receipt of an application for a stage carriage permit or a public carrier's permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date not being less than thirty days from such publication, on which, and the time and place at which, the application and any representations received will be considered."
It is a common ground that the Government Transport Service was not an applicant for the grant of permits on the route in question. As such, in order to safeguard its financial interests by preserving its monopoly, normally, it could be presumed that it should have raised proper objections before the Regional Trans port Authority in the prescribed manner which alone could confer a locus standi on it to file an appeal under clause (f) of section 64 of the Act. In order to controvert the assertion of the Govern ment Transport Service, the petitioners did not care to summon the record to show whether timely objections had not been filed by the Government Transport Service in the prescribed manner. In the absence of the record, we have to fall back upon a letter dated the 4th February 1964, addressed by the District Manager, Government Transport Service, Rawalpindi to the Secretary, Regional Transport Authority (Annexure R/1), objecting to the correctness of the minutes of the meeting which was challenged on the ground that the name of the Government Transport Service was not mentioned as one of the objectors. There is also a reference to this letter in the grounds of appeal filed by the Government Transport Service (Annexure E/1), in which the same position has been reiterated. It is clear from the language of subsection (3) of section 57 of the Act that the applications for the grant of permits and the representations received in opposi tion to such grant are to be considered simultaneously. A party which has not submitted timely representation in opposition to the grant has obviously no locus standi to raise oral objection at the tune of consideration, except of course, and applicant who by implication may be deemed to be opposing the grant in favour of the rival candidate and as such need not specifically send representations, as was held in Messrs Shamshir Transport Company Ltd. v. Member (Colonies and Transport) Board of Revenue, West Pakistan (P L D 1964 Lah. 710). In the circumstances, we are inclined to hold that the Government Transport Service being an existing operator on the route in question had opposed the grant of permits, and as such was competent to file an appeal under section 64(f) of the Motor Vehicles Act, in which inter alia the Authority's decision to throw open the route for the grant of permit can also be challenged.
16. The contention regarding the competency of the Govern ment Transport Service to file an appeal also loses much of its force when considered in the light of an order of the Supreme Court in Civil Petition No. 367 of 1964, filed by Jet Transport Company and Messrs Chakwal Transport Company against the order of this Court, refusing to grant interim relief to the petitioners by suspending the operation of the order of the Member, Board of Revenue. It would be advantageous to repro duce the following observation of their Lordships of the Supreme Court in this regard
"The present petition for special leave is directed against this refusal of the High Court to grant a stay order.
It appears to us, after a perusal of the order passed on appeal by the Member, Board of Revenue, that though he purported to dismiss the other appeals, he, in fact, particularly allowed them because their claim that no permits should have been granted to the petitioners, was accepted. The objection raised therefore that the Government Transport Company's appeal was not competent before the Member, Board of Revenue, is robbed of all substantial basis."
17. The last contention regarding the consideration of extraneous matters was specifically stressed in Writ Petition No. 1467 and is dealt with separately in that context.
18. Writ Petition No. 1467 relates to Chakwal‑Pind Dadan Khan routes on which out of the two permits declared by the Regional Transport Authority, Rawaipindi, one was granted to Messrs High Landers Transport Company, the petitioners in this case. Two appeals were filed against this order, one by Messrs Hazrat Sultan Bahu Transport Company Ltd., an unsuccessful applicant and the other by the Government Transport Service, a non‑applicant existing operator on the route. The learned Member, Board of Revenue, while accepting the appeal of the latter, cancelled the petitioners' permit on the ground that it was not in public interest to introduce additional vehicles on the route as the existing services by the Government Transport Service were running only half‑full. The learned appellate authority also expressed its dissatisfaction with the mode of assessment of public interest without conducting a proper survey.
19. There is a complete identity of the legal issues involved and as such the contentions raised by Mr. Khalil‑ur‑Rehman Khan, the learned counsel for the petitioners being precisely the same, have also to be repelled for reasons stated earlier. It may, however, be observed that we were not persuaded to agree with the learned counsel that the impugned order was actuated or influenced by any extraneous considerations such as the interest of the Government Transport Service, regarding which no statutory safeguards existed in the Act unlike the new provisions contained in section 45 (2) and section 49 (3) of the Motor Vehicles Ordinance of 1965, relating to the Road Transport Corporation. On the contrary, the reference to the Government Transport Service running only half‑full' on the route in question was only made with a view to emphasising the adequacy of the existing transport services and the want of necessity of a new permit on this route as compared to the volume of traffic. As regards the dissatisfaction of the Member, Board of Revenue, with the mode of assessment of public requirement, without conducting a proper survey, we have already held that being the appellate authority, he is administratively competent to substitute his judgment and his powers to do so, unlike the powers of this Court in exercise of writ jurisdiction suffer from no limitation, and as such, it would be impossible to question the legality of the impugned order on this score as well.
20. For the foregoing reasons, all the three writ petitions must fail and are hereby dismissed with no order as to costs.
K.M.A. Petition dismissed.
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