Find a Lawyer

Miscellaneous Application No. 653 of 1955 decided on 19th December 1955, for a Writ of Mandamus and/or alternatively for a Writ of Prohibition " Certiorari " under section 223‑A of the Government of India Act, 1935.

Certiorari, writ of‑Against Appellate authority under Motor Vehicles Act, 1939‑Excess of jurisdiction and decision of case against requirements of natural justice‑Quasi‑judicial authority‑Motor Vehicles Act (IV of 1939), S. 64‑Government of India Act, 1935, S. 223‑A.

Out of a number of persons, the Provincial Transport Authority granted permits to 124 persons under the Motor Vehicles Act, 1939. The applications of others were rejected. Nine persons of the latter category appealed to the Home Secretary, the Appellate authority under the Act, who cancelled all 124 permits and remanded the case for recon sideration and granting permits to deserving persons.

that the exercise of authority in canceling the permits was a quasi‑judicial if not a judicial act. A writ of certiorari was, therefore, in order.

Although the Motor Vehicles Act, and the Rules framed thereunder, do not reveal any provision with regard to the powers that the appellate authority can exercise and the nature of the final order that it can pass the omission cannot, be taken to mean that the appellate authority has got unlimited powers.

The legislature intended that the appellate authority could only grant that relief to the appellant, which he had demanded but had been refused to him, and which ought to have been granted to him in law and in equity. If a person appeals against the refusal of the Provincial Transport Authority to grant a permit to him, then all that the appellate authority could do was, if it arrives at the conclusion that the refusal to grant was not founded on equity or good law, to grant the permit. It could not be said that this power of the appellate authority carried with it the jurisdiction to cancel or revoke the permits of other people.

Section 64 of the Motor Vehicles Act limits the powers of the appellate authority. This authority when an appeal is filed under clause (a) can pass an order under that clause alone, and not under other clauses mentioned in section 64.

The Home Secretary therefore had no authority to cancel or revoke the permits, which had been granted to 124 persons by the Provincial Transport Authority.

Cancelling the permits without notice to the persons con cerned was against the principles of natural justice and the case was a fit one for issue of writ.

Peer Bakhsh Khan for Petitioners.

Muhammad Ali, Additional Advocate‑General for Respondents.

.‑Sixteen persons in all obtained this rule by two separate petitions under section 223‑A of the Government of India Act 1935, for a writ of the nature of mandamus, and alternatively for a writ of certiorari, restrain ing the Province of West Pakistan, the Home Secretary thereof and the Provincial Transport Authority Peshawar, from giving effect to an order passed by the Home Secretary of the former North‑West Frontier Province Government, on 3rd October 1955. This order was given on an appeal purporting to have been preferred under section 64 of the Motor Vehicles Act, IV of 1939, by nine persons against the orders of the Provincial Transport Authority dated 7th of August 1955, granting Public Carriers' Permits to 124 persons including the sixteen petitioners The Home Secretary had remanded the case to the same Authority for the examination of the applications afresh, and granting Permits to deserving

It is contended that the order of the appellate authority is devoid of all jurisdiction, and at the same time flagrantly violates the principles of natural justice. In order to appreciate these contentions the facts of the case may briefly be stated here, On the 10th of May 1954, Secretary Provincial Transport Authority addressed a memorandum to the Home Secretary of the then North‑West Frontier Province Government, requesting that the number of the Public Carrier Permits might be increased by at least one hundred. This request was accepted, and instead of 100, the Provincial Government increased them by 124, thus bringing the total number of Permits in the settled Districts to 500. A Press Communique No. 399‑414/PTA, dated Peshawar the 13th of January 1955, was issued, inviting applications for the increased Permits. Plying the Goods Vehicles in this part of the country seems to be a very paying and lucrative business, because numerous applications were received on the publica tion of the above Press Communique.

The Provincial Transport Authority at their meeting held on the 7th of August 1955, considered these applications and granted Permits to 124 persons, including the sixteen petitioners. As regards the rest of the applications the order ran as under: ‑

"The remaining applications were rejected, because the successful applicants appeared to be comparatively more suitable in view of the principles formulated by the Provincial Transport Authority for the consideration of the applications."

Nine persons out of the rejected applicants, namely, Muhammad Ajab; Gul Mast Khan, Fakir Muhammad Khan, Haji Mehrdil Khan, Khani Jan, Amir Badshah, Ghafur‑ud‑Din. Haji Muhammad Khan and Subedar Purdil Khan, lodged appeals against the above order of the Provincial Transport Authority, which were decided by Wali Muhammad Khan, the then Home Secretary to the Government N. W. F. P., (now extinct), on 3rd October 1955, by an order, the concluding and the effective portion of which was as under:‑

" I am, therefore, constrained to upset the orders of the Provincial Transport Authority, for the issue of the entire lot of 124 permits and remand the case to them to re‑examine all applications on merits and to issue permits to deserving persons, in accordance with the directive of the Provincial Government."

Under the Motor Vehicles Act of 1939, a Regional or Provincial Transport Authority is authorized (a) to grant a permit unconditionally or attaching a certain condition to it, (b) revoke or suspend a permit, or vary the conditions attached to a permit, (c) refuse to transfer the permit to the person succeeding on the death of the holder of a permit, (d) refuse to countersign a permit or attach a condition at the time of the counter‑signature, (e) refuse to renew a permit, (f) grant a permit, and (g) refuse to grant an authorization to drive a public service vehicle.

Any order passed by the Provincial Transport Authority under clauses (a) to (e) can be appealed against under section 64 of the Motor Vehicles Act, by the persons aggrieved by such order. Under clause (f) an appeal can be preferred by a local authority or police authority or an association which, or a person providing transport facilities who, having opposed the grant of the permit, is aggrieved by the grant thereof or by any condition attached thereto. Under clause (g), the appeal can be loged by the holder of a license, who is aggrieved by such refusal. On the receipt of the appeal within the prescribed time and in the prescribed manner the appellate authority, as expressly provided, before deciding it, has got to give an opportunity of being heard to the appellant and the Provincial Transport Authority. A close reading of the Motor Vehicles Act, and the rules framed thereunder, reveal that no provision is made with regard to the powers that the appellate authority can exercise and the nature of the final order that it can pass. The omission of the legislature in this respect., however, cannot be taken to mean that the appellate authority under this Act has got an unlimited power, and can do everything on the surface of the earth, including to declare a man a woman and a woman a man. 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 the 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 that 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. If the legislature wanted the appellate authority to exercise unlimited powers under the law, than instead of enumerating the orders and the persons against which and by whom the appeals could be filed, it could have stated generally that all orders of the Provincial Transport Authority could become the subject‑matter of appeal, and the appellate authority on appeals having been filed, would have the power to make any order, which ought to have been made, and to make such further or other orders as the case might require. In the nutshell the appellate authority could have been given all those powers, which are given to the similar authority under the Civil P. C. and the Code of Criminal Procedure. Section 64 of the Motor Vehicles Act in itself limits the powers of the appellate authority. This authority when an appeal is filed under clause (a) can pass an order under that clause alone, and not under other clauses mentioned in section 64. In the case before us, all the nine appellants, who had filed appeals against the orders of the Provincial Transport Authority, were only aggrieved by the refusal of the Provincial Transport Authority to grant them the Permits and all that they demanded and could in fact demand on appeal was that the Permits, which had been refused to them, might be granted to them, because they were more deserving people than the persons in whose favour the Permits had been granted. 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.

We are consequently of the opinion that so far as the can cellation of the Permits is concerned, no foundation was laid for the appellate authority to pass an order in that respect; nor was there any jurisdiction vested in the appellate authority under section 64 of the Motor Vehicles Act to remand the case for the reconsideration of the Provincial Transport Authority. The impugned order, thus, is devoid of all jurisdiction, and is liable to be ignored.

Apart from it, as the act of the appellate authority in canceling the Permits of 124 persons was, if not a judicial act, was at least a quasi‑judicial act, because it involved a decision as to the rights of certain parties, it must be performed according to the admitted principles of natural justice, which include the principle that the moment it is intended to affect the right of any person by an order on appeal, then the appellate authority is charged with a duty to give notice to the person affected and give him an opportunity to be heard. If an order is passed behind the back of such person without giving any notice to him, it would be a flagrant violation of natural justice. The Home Secretary in the present case admittedly cancelled the Permits without giving any opportunity to 124 persons, in whose favour the Permits had been granted, to be heard. His order consequently under the circumstances would be completely against law, equity and good conscience.

In view of what has been stated above, we order the issue of a writ of certiorari, and quash the order of the Home Secretary to the Government N. W. F. P., dated aid October 1955, upsetting the order of the Provincial Transport Authority for the issue of the entire lot of 124 permits, and remanding the case to them to re‑examine all the applications on merits and to issue Permits to the deserving people, as it is obviously in excess of his jurisdiction.

In view of the complicated nature of the case, we decline to pass any order as to costs.

A. H.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.