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Civil Appeal No. 34 of 1957, decided on 20th January 1958.

(On appeal from the Order, dated 5th November 1956 of the High Court of West Pakistan, Karachi Bench in Writ Petition No. 470 of 1956).

160--‑Special leave to appeal‑Granted to consider whether Transport Authority has power to fix fares to be charged by licensees from passengers.

Order XIX, rr. 2 & 3--- Concise Statement not filed by respondent nor any notice of intention not to lodge such statement‑Respondent not entitled to be heard unless allowed by Court.

S. 43--‑Power of fixing fares for stage‑carriages reserved exclusively to Provincial Govern ment‑--Order of Transport Authority fixing fares, held to be in excess of Authority's power and therefore void.

Held, that the power of fixing fares which may be charged by operators of stage‑carriages is reserved exclusively to the ,Provincial Government ‑by virtue of section 43, Motor Vehicles Act (IV of 1939).

Further, that there was no provision in the Act enabling the Provincial Government to delegate its function under section 43 to the Provincial Transport Authority or any Regional Transport Authority.

Therefore, an order of the Provincial Transport Authority reducing such fares was in excess of the powers vested in the Authority and was thus void.

A. K. Brohi, Senior Advocate, Supreme Court of Pakistan, (Abdul Hafiz, Advocate, Supreme Court with him) instructed by Siddiq of Co., Attorneys for Appellants.

Respondent No. 1 ex‑parte

Zulfikar Valiani, Advocate, Supreme Court instructed by S. A. Majid, Attorney for Respondent No. 2.

Date of hearing: 20th January 1958.

.‑This is an appeal brought before the Court by special leave granted to three persons namely Muhammad Yasin Moghal, Nazir Muhammad Khan and Muhammad Afzal Khan, against the dismissal by the High Court of West Pakistan of their petition to that Court for a Writ of Mandamus or other appropriate writ directed to the Government of Pakistan and to the Provincial Transport Authority of Karachi, in respect of the implementation of certain resolutions passed by the latter authority. The peti tioners are owners of stage‑carriages which ply for hire in the area of the Federal Capital. The operation of such carriages is governed by the Motor Vehicles Act, 1939 by section 2 of which, a stage‑carriage is defined as "a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey". (There is a contrast provided here with the definition of the expression "motor‑cab", which is "any motor vehicle cons tructed, adapted or used to carry not more than six passengers excluding the driver, for hire or reward". The difference has a bearing upon the question for decision, as will presently appear).

By the resolutions complained of, the appellants have been adversely affected, as they purport to reduce the fare chargeable per passenger carried by a stage‑carriage, from 8 pies per mile to 5 pies per mile. The appellants aver that the rate of 8 pies per mile was fixed in the year 1941 when the cost of motor‑buses and their operation was about one‑fifth or one‑sixth of what it was in October 1956 when the order reducing the rate was made. A number of other circumstances were mentioned in chronological order in the petition to the High Court to emphasize the inequity of the new order, but in view of the argument which has been presented on behalf of the appellants, it is unnecessary to consider these matters.

The High Court dismissed the petition on the ground that the petitioners operated their buses under licences, "and that being so, it will be within the powers of the licensing autho rity to put conditions under which the licensee can ply his buses". On this ground, the learned judges of the High Court thought that there was no invasion of any Fundamental Right vested in the petitioners and the proper Court to deal with the matter was a Civil Court exercising ordinary jurisdic tion. Leave was granted by this Court to consider whether under the Motor Vehicles Act or the Rules made thereunder, the Provincial Transport Authority has the power to fix fares to be charged by the licensees from the passengers".

The Government of Pakistan is not represented before us although service has been effected. The Provincial Transport Authority of Karachi is represented by counsel, but we note that no Concise Statement as required by Order XIX of the Rules of this Court has been filed, nor has any notice in writing been given as provided in rule 3 of the said Order, of an intention not to lodge a Concise Statement "while reserv ing the right to address the Court on the question of costs". Accordingly, the Provincial Transport Authority was not entitled to be heard in reply to the arguments addressed on behalf of the appellants. We have, however, allowed Mr. Valiani who appeared for the Provincial Transport Autho rity to present his arguments in reply to the clear and forceful contention raised by Mr. Brohi for the appellants.

That contention is that the power of fixing maximum or minimum fares which may be charged by the operators of stage‑carriages is reserved exclusively to the Provincial Government by, virtue of section 43 of the Motor Vehicles Act. The section is an elaborate one. It sets out what factors the Provincial Government shall take into consideration when it undertakes the function of fixing such fares. These factors are firstly the advantages offered to the public or to trade and industry by the development of motor transport and secondly the desirability of (i) coordinating road and rail transport (ii) preventing the deterioration of the road system and (iii) preventing uneconomic competitions. The procedure by which a decision shall be arrived at is also speci fied with particularity. It is necessary first that the Provincial Government should have "heard the representatives of the interests affected", and thereafter should have consulted the Provincial and Regional Transport Authorities concerned. The decision fixing fares is to be notified in the Official Gazette.

Mr. Brohi has had no difficulty in showing that none of these conditions were fulfilled in relation to the order of which his clients complain. That order was issued by the Secretary of the Provincial Transport Authority ; it is des cribed as a "Police Notice", and was published in the news papers, but apparently not in the Official Gazette. But it is not the formal defects which Mr. Brohi relies upon most strongly. His case is that the Provincial Transport Authority does not possess the slightest shadow of power to issue an order fixing fares chargeable by stage‑carriages in Karachi. The Provincial Transport Authority is not the Provincial Government. It is a body totally distinct from and sub-ordinate to the Provincial Government. The expressions used in section 43 of the Motor Vehicles Act are of such particularity as to make it clear beyond all possible doubt that the power of fixing fares was reserved to the highest authority acting within the Province and that that power had to be exercised in the light of specified considerations declared by the statute and in a manner which was also specified in detail. Furthermore, there is no provision in the Act enabling the Provincial Government to delegate its function under section 43 to the Provincial Transport Authority or any Regional Trans port Authority. Indeed the duty imposed upon the Government of consulting these authorities for the purpose of exercising its powers under the section, clearly excludes the possibility of delegation of that power to either of these authorities. (It should be mentioned that in Karachi, the Provincial Transport Authority exercises all the powers vested by the Act in a Regional Transport Authority, there being no Regional Transport Authority in the area of the Federal Capital.

Further to emphasise that the vesting of the relevant power in the Provincial Government is of an exclusive nature, Mr. Brohi has pointed to the provision in section 51 (b) of the Act which empowers a Regional Transport Authority to "fix in the case of motor‑cabs the fares which may be charged". The distinction between a motor‑cab and a stage‑carriage appears clearly from the definitions given to these expressions in the Act, which have already been reproduced above. The vehicle described as a "motor‑cab" in the Act is obviously the common taxi as appears from clause (d) of section 51 which enables the Regional Transport Authority to "require that any motor‑cab shall be fitted with a taxi teeter". The fixing of rates for the hiring of taxis certainly is a question of public interest, but its scope and importance are obviously of very much lesser degree than those attaching to the fixing of fares for the carriage of passengers in a stage‑carriage (or motor‑bus) operating on a lengthy route and taking up and drooping passengers at prescribed points on the route. It is clear that the larger function has been expressly reserved to the Provincial Government whereas the lesser matter has been placed within the jurisdiction of the Regional Transport Authority. It is therefore not reasonable to expect that the Provincial Government should be competent to delegate its function in regard to stage‑carriages, to the Regional Transport Authority, and the Act indeed contains no provision enabling such delegation.

Mr. Valiani, in reply has sought to justify the action of the Provincial Transport Authority by reference to section 47 (1) (c) and section 48 (d) of the Act, but it seems to us to be perfectly clear that these provisions cannot pos sibly be said to confer any power on the Provincial Transport Authority to perform a function which is expressly reserved to the Provincial Government. The provision in section 47 on which Mr. Valiani relies is to the effect that one of the considerations which the Regional Transport Authority should bear in mind in deciding whether to grant or refuse a stage- carriage permit is "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". It is neither necessary nor desirable that we should attempt to state the full content of these words. It is sufficient to say that they cannot possibly have the effect of investing a Regional Transport Authority with power to fix the fares chargeable by a stage‑carriage operating on a parti cular route. As for the reference to section 48 which inter alia contains a provision empowering a Regional Trans port Authority to attach to "a stage‑carriage any prescribed condition" or any one or more of certain conditions which are specifically stated in the clause,‑ we need only say that none of the seven specified conditions an be construed in the sense desired by the Provincial Transport Authority, and to construe the expression "any prescribed condition" as includ ing a power in the Regional Transport Authority to fix fares, involves violation of several rules of statutory interpretation to the extent of nullifying the clear provisions of section 43, The expressions used in the latter section, make it clear that the intention of the Legislature was that the powers thereby given should be exercised by the Provincial Government only, and by no other authority.

We are clearly of the opinion that the order of the Provincial Transport Authority, Karachi reducing the fares chargeable by stage‑carriages is in excess of the powers vested in that authority, and is therefore void. We accordingly allow this appeal and direct that a writ in appropriate form shall issue to the respondents prohibiting them from carrying the said order into effect. We allow the appellants their costs of this appeal against the Provincial Transport Authority, Karachi.

A. H. Petition accepted.

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