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Art. 199-Constitutional jurisdiction-Question of jurisdiction of Tribunal going to root of matter would be considered. in consti tutional jurisdiction notwithstanding fact that objection with regard thereto bad not been taken at earliest-If a Tribunal or an Authority 6ndertook to adjudicate upon matters in respect of which law did not provide any Authority to them any action taken or order passed by such an Authority or. Tribunal would be coram non judice-It would not be just and proper to overlook or ignore to consider pertinent question of jurisdiction even taken for first time in constitutional petition.-[Jurisdiction],

(b) West Pakistan Motor Vehicles Ordinance (XlX of 1965)-

Ss. 46(6) & 50(3)-Timings of stage carriage, regulation of Regional Transport Authority, is competent to regulate timings of stage carriage within its territorial limits-Both Provincial Transport Authority and Regional Transport Authority are given powers in their respective sphere of jurisdiction-Regional Transport Authority can regulate such timings in respect of buses plying op routes within limits of its region and regarding Buses plying on routes which extended beyond such limits but which fell within area and jurisdiction of Provincial Transport Authority or interprovincial routes Provincial Transport Authority may regulate such timings.

Salah-ud-Din and others v. Province of Sind through the Secretary, Regional Transport Authority and others 1984*C L C 1989 distinguished.

(c) West Pakistan Motor Vehicles Ordinance (XIX of 1965)-

S. 50(3)-West Pakistan Motor Vehicles Rules, 1969, R.80-Provincial Transport Authority-Main function-To co-ordinate aria regulate activities and policies of Regional Transport, Authority ; to settle all disputes and decide matters on which there are difference of, pinions-Provincial Transport Authority may regulate timings of buses plying on routes which extended to limits of more than one Regional Transport Authority or inter-provincial routes, etc.

(d) West Pakistan Motor Vehicles Ordinance (XIX of 1965)-

- S. 50(3)-Route permit-Fixing of time-table -Fresh route permits to be issued to new buses-No priority in time could be attached to new route permit for a new bus for sole reason that it belonged to a firm registered earlier-Held, it was not firm or date of its registration but route permit and date of its issuance for plying buses which was to be taken into account for fixing time-table.

Basharatullah for Petitioner.

Nemo for Respondents Nos. 1 and 2.

Iftikhar Muhammad for Respondent No. 3.

Date of hearing : 28th May, 1986.

AMIR-UL-Mute MEN(3AL, J.-This constitutional petition is directed against the orders, dated 13-6-1982 made by the Secretary, Regional Transport Authority, Quetta and order. dated 18-9-1985 made by the Chairman. Provincial Transport Authority, Baluchistan, wherein the time. table of Buses plying on Quetta-Tartan route were fixed. ' Briefly stated the facts are that the petitioner is a registered partnership firm plying Buses on different routes including the route in question.

The partnership was firstly registered on 8-12-1966. On 15-12-1969 three of the partners retired and partnership was reconstituted with total of eight partners. This, changed and reconstituted partnership, was registered on 4-3-1971. Two route permits (Annexures 'B' and 'B-I') of the petitioner's firm were revalidated. The respondent Haji Abdul Karim became transporter on 27-8-1975. On 31-12-1969, it appears, that some sort of arrangement by way of agreement amongst the transporters was reached for an agreeable time-table of Buses, meant for Quetta-Taftan route (Annexure 'C') and the order was passed by the Regional Transport Authority, Quetta fixing time-table on the Buses which is hereby reproduced :-

Dated 2nd February, 1980. No. 261-68/R. T. A. Continuation of this Office Order No. 1767/R. T. A., dated 31st December, 1979, the following Transporters of Quetta Taftan route with mutual consent of each other made revised time table of their Buses of which all of them agreed and put signatures which has been approved and issued, which is applicable with immediate effect :-

Departure Departure

from Quetta from Taftan

Chagai Tribal

Tpt. Company. 7-00 a.m. (Tuesday) 6-30 p.m. (Wednesday)

Haji Abdul

Karim. 7-30 a.m. 7-00 a.m. (Thursday)

Chagai Tribal

Tpt. Company.

8-00 a.m. 7.30 a.m,

Haji Abdul

Karim.

8-30 a.m. 8-00 a.m.

(Sd.) Secretary,

Regional Transport Authority."

Agha Gul, one of the partners of the petitioner's firm filed a represen tation on 3-2-1980 to the Secretary, Regional Transport Authority, but it seems that no orders were passed on the same. Being aggrieved an appeal was preferred to Provincial Transport Authority on 2-5-1981 which was accepted and the case was remanded to give opportunity for a fresh decision according to law. On 21-5-1981 a fresh titre-table was given but said Agha Gul was not satisfied and he went in appeal against the said order, dated 18-6-1981 and the case was again remanded. Once again respondent No. 1 passed order on 20-6-1982 fixing time-table of Buses on Quetta-Taftan route wherein the previous order was re-affirmed (Annexure 'L' page 63). Yet another appeal was preferred on 10-7-1982 but this time it was rejected by Rrovincial Transport Authority, on I8-9-1985 (Annexnre 'N'). Hence this petition.

In support of the petition it was contended by Mr. Basharatullah, learned counsel for the petitioner as under :-

(1) That the petitioners is a registered firm and Agha Gul was one of the partners. Since the firm is admittedly registered much prior, hence on the principle of first come first serve basis, the petitioners firm was entitled for a time-table, prior to respondent No. 3, who became a transporter subsequently.

(2) That the petitioner firm had not agreed to the time-table as alleged by the respondent No. 1.

(3) Finally it was contended by Mr. Basharatullah forcefully that the time-table issued by Secretary, Regional Transport Authority, Quetta was without jurisdiction in terms of section 50(3) of the Motor Vehicles Ordinance, 1965 (hereinafter called the Ordinance) It was strongly argued by Mr. Basharatullah that Regional Transport Authority was not competent under law to have fixed the time table.

On the other

hand Mr. Iftikhar Muhammad, learned counsel for 'respondent No. 3, in rebuttal to the aforesaid arguments urged as under :-

(1) That signatory to the petition is not an aggrieved party because neither the route permit nor the Bus in question, is in the name of Mir Muhammad or for that matter of Chaghai Transport Company.

(2) The doctrine of acquiescence would apply because the petitioners firm has agreed to the time-table issued by Regional Transport Authority. '

(3) That Agha Gul initiated the proceedings and was aggrieved in individual capacity. There was no question of any firm. The time table allowed to Buses is always attached with the route permits.

(4) As for as the question of jurisdiction is concerned, the same cannot be allowed in a writ for the first time because no such specific objection to the jurisdiction of Regional Transport Authority was raised neither in the appeal nor in the prior proceedings throughout.

(5) That even otherwise in rule 62 of Motor Vehicles Rules, Provincial Transport Authority could delegate powers to Regional Transport Authority in view of the fact that time-table for, different routes are fixed by Regional Transport Authority, Quetta which is now an established practice, and which has never been de-iated from. It was further contended that since the Provincial Transport Authority has confirmed the order of Regional Transport Authority hence the order passed by Regional Transport Authority has been validated.

Since the question of jurisdiction involved in this case goes to the root of the matter determining whether or not Regional Transport Authority has got any legal sanction to fix time table, hence we are unable to subscribe to the view that such a question may not be decided merely because objection with that effect has not been taken at the earliest. If a Tribunal or an authority undertakes to adjudicate upon matters in respect of which the law does not provide any authority to them, of course, any action taken or orders passed by such an authority become coram nor judice. It would not be just and proper in such circumstances to overlook or ignore to consider such pertinent question of jurisdiction even taken for the first time in a constitutional petition. We are, therefore B inclined to dilate upon the question whether the Regional Transport Authority is competent under law to fix time-tables for the stage carrier or not

Mr. Basharatullah, learned counsel for the petitioner has strenuously contended that it is only Provincial transport Authority which is competent to regulate timings of stage carriages, as per amended subsection-(3) of section 50. For such a view he relied upon a case namely Salah-ud-Din and others v. Province of Sind through the Secretary, Regional Transport Authority and others (1984 C L C 1989). In the said case their Lordships while sitting in a Division Bench held, that it is only the Provincial Transport Authority, which is competent to regulate timings. Timings fixed by the Regional Transport Authority were declared as being without lawful authority. After perusal of the amended section as referred to hereinabove, it becomes clear that the above view formed by the Hon'ble Division Bench was based on concession given by the learned Assistant advocate-General of Sind. It seems that the amended section was not brought to the notice of their Lordships and, therefore, they were pleased to form the above mentioned opinion.

We have examined the amendment as substituted by Ordinance IX of 1970 notified in the Gazette of Pakistan (Extraordinary), dated 27th March, 1970. Amendment in section 50 is hereby reproduced below

Section 50. -(1), .

(a) .

(b) .

(2) (I) (ii) (iii) (iv) (v) (vi) (vii) (viii) .

(3) "The Provincial Transport Authority or a Regional Transport Authority may regulate the timings of departure of stage carriages whether they belong to one or more owners."

From the plain perusal of the amended clause, i.e. section 50(3) it becomes abundantly clear that both the Provincial Transport Authority and Regional Transport Authority have been empower to regulate the timings of departure of stage carriages. It otherwise seems to be in consonance with the scheme of the Ordinance and in tune with smooth running of administration. Both Provincial Transport Authority and Regional Transport Authority have been given power in their respective spheres of jurisdiction. The Regional Transport Authority may regulate such timings in respect of Buses plying on r routes within the limits of its region and regarding of the Buses plying on routes which extend beyond such limits but which fall within the area and jurisdiction of the Provincial Transport Authority or inter-provincial routes, the Provincial Transport Authority may regulate such timings. We are, therefore, of the opinion that the abovesaid judgment will no come in our way for the reasons that the correct legal position was no brought to the notice of their Lordships. It is observed that such amendment was apparently- misprinted in the Reference book as then published, because it is the Provincial Transport Authority alone (in t be misprinted section of the said book) which is competent to regulate such timings. It is pertinent to note that even in the end of misprinted section it is clearly added that the same had been substituted by West Pakistan Ordinance IX of 1970. The misprinted subsection reads as under :-

"Section 50(3)-The Provincial Transport Authority may regulate the timings of departure of stage carriages, whether they belong to one or more owners. (Sub. by W. P. Ordinance IX of 1970)."

The actual amendment in law can be seen and observed in the amendment as reproduced hereinbefore, appearing on page 282 of P L D 1970 Central and Provincial Statute.

Moreover, section 46(6) of the Ordinance read with rule 80 of the Rules, will further supplement our view. The main function of the Provincial Transport Authority seems to be to co-ordinate and regulate the activities and policies of the Regional Transport Authorities, to settle all the disputes and decide matters on which there are difference of opinions. D However, as pointed out hereinabove, Provincial Transport Authority may regulate timings of Buses plying on routes which extend to the limits of more than one Regional Transport Authority, or inter Provincial routes etc. The powers of Regional Transport Authority in fixing time-tables within its territorial limits, is further clarified from rule 80, which is reproduced hereinbelow :-

"80. Regulation of arrival and departure of stage carriages.-Where stage carriage permits issued under section 50 in respect of stage carriage services contain regulations for the timings of arrival or departure of stage carriages in accordance with the provisions of 2 (subsection (3) of section 50) save with the permission in writing of the Regional Transport Authority issuing any such permit, not more than one stage carriage at a time in any service shall be permitted to arrive or depart from any particular place in accordance with such regulations."

From what has been discussed above, we are inclined to hold that the/ Regional Transport Authority ,is also competent to regulate timing of stage carriages within its territorial limits and objection to the contrary, raised by petitioner is not well-founded.

This leads us to the second issue, which is equally important, i.e. whether the Regional Transport Authority has followed the principles of first come, first served while fixing the time-tables of Buses in question The admitted features regarding this issue are that respondent No. 3 Haji Abdul Karim was issued a route permit on 27-8-1975 for Bus No, QAB-8177 and route permit in favour of Agha Gul was issued on 26-2-1977 for Bus No. QAA-9977. Mr. Basharatullah. vehemently argued that since petitioner's firm of which Agha Gul is a partner has been registered earlier which was re-validated on 20-10-1970, hence the time for Route Permits must be counted from the date of registration of the firm rather than the lime of issuance of new Route Permit. Such arguments is not only fanciful but totally untenable. There is no denying of the fact that fresh route permits are issued to new Buses. It would be an anomaly to attach priority to a new route permit for a new Bus for the sole reasons that it belongs to a firm registered earlier. It is not the P Firm or the date of its registration, but the Route Permit and date of its issuance for plying buses, which is to be taken into account for fixing time tables.

To substantiate his arguments, much stress was laid on Annexures'B' and 'B-1', two Route Permits in favour of petitioner's Firm in the year, 1970-71. But as rightly pointed out by Mr. Iftikhar Muhammad, that those permits were in respect of different Buses, i.e. Bus Nos. QA-4707 and QA-1608. Mr. Basharatullah, submitted that the old Buses belonging to a Firm, are replaced when they are out of order, by new Buses with new Route Permits. Hence it was argued that the date of the issue of first

Route Permit is counted for priority and not the date of its renewal. But there is no material on record to indicate that Bus No. QAA-9977 was a substitute for any 'of the aforesaid Buses.

Thus, in a nutshell the position of priority before the Regional Transport Authority for fixing-time table was as under : -

Abdul Karim Bus No. QAB-8177

Route permit issued on 27-8-1975.

Agha Gul Bus No. QAA-9977 Route permit issued on 26-2-1977.

Regional Transport Authority, therefore, was correct in giving priority to Bus No. QAB-8177, belonging to respondent No. 3.

Provincial Transport Authority, after remanding the case for three times consecutively, ultimately upheld the order passed by Regional Transport Authority on the basis of first come first served.

Yet another question raised by Mr. Basbaratullah was that the petitioner's firm did not concede to any arbitration, therefore, order passed on such a basis is illegal. This argument loses importance for the reasons that the orders passed by Regional Transport Authority on such considera tions was already set aside by Provincial Transport Authority, who remanded the case to be decided afresh. The order impugned, dated 13-6-1982 was passed not en the basis of any Arbitration but on the principles of first come first served. in presence of both the parties.

From the discussion and reasons mentioned hereinabove, we find no merits in this petition which is hereby dismissed. However, there will be no orders as to costs.

Petition dismissed.

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