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Petitioner: MESSRS MOMIN MOTOR CO VS Respondent: REGIONAL TRANSPORT AUTHORITY, DACCA
P L D 1962 Dacca 310
P L D 1962 Dacca 310
Before S. M. Murshed and Salahuddin Ahmed, JJ
MESSRS MOMIN MOTOR Co.‑Petitioner
Versus
REGIONAL TRANSPORT AUTHORITY, DACCA AND OTHERS‑Respondents
Writ Petition No. 23 of 1961, decided on 10th August 1961.
(a) Motor Vehicles Act (IV of 1939), S. 62 read with S. 58-- Route Permit fulfilling requirements of neither S. 62 nor of S. 58 Whether could automatically be deemed to be one under S. 58 Permit granted under S. 58 for one year‑Whether would automatic ally become one for 3 years.
A permit which fulfils neither the requirements of section 62 of the Motor Vehicles Act, 1939 in granting temporary permits nor those of section 58 cannot be automatically converted into a regular permit under the provisions of section 58. A permit, which is not validly granted either under section 62 or under section 58 cannot be described as a valid permit given under the Act. It is an illegal permit or an irregular permit; but it cannot certainly be described as a permit under section 58 when there was not even a pretence to grant a permit under that section and when the mandatory requirements of law with regard to the issue of such permits were not even followed.
A permit given under section 58 of the Motor Vehicles Act, 1939 for a period of one year would not automatically become one for a period of three years.
United Motor Transport Co. Ltd. v. Sreelakshmi Mot3r Transport Co. Ltd. A I R 1945 Cal. 260 ; Shib Prosad Mondal v. The State of West Bengal A I R 1959 Cal. 543; Moti Lal v. The Government of the State of Uttar Pradesh A I R 1951 All. 257; Sri Rama Vilas Service Ltd. v. The Road Traffic Board, Madras A I R 1948 Mad. 400; Shah Transport Co. v. The State of Madhya Pradesh A I R 1952 Nag. 353; Y. Mahbood Sheriff & Sons v. Mysore State Transport Authority A I R 1960 S C 321; West Punjab Government v. Pindi‑Jhelum Valley Transport Ltd. P L D 1953 Lah. 339 and West Punjab Government v. Pindl .lhelum `Valley Transport Ltd. P L D 1960 S C (Pak.) 88 ref.
(b) Constitution of Pakistan (1956), Art. 170 ‑ Petitioner's conduct disentitling him to obtain relief prayed for‑Court would be reluctant to exercise discretionary power‑Other remedy open ---Writ can be issued only in exceptional cases.
Heg v. Committee Men for South Holland Drainage (1838) 112 E R 901 at p. 904 and District Magistrate, Lahore v. Raza Kazim P L D 1961 S C 178. ref.
(c) Motor Vehicles Act (IV of 1939), S. 58‑‑Order under section 58 neither judicial nor quasi‑judicial‑Cannot be quashed by certiorari unless order could not have been made under provisions of section‑Exercise of discretionary statutory power in perfunctory manner by administrative officer‑Deprecated‑Constitution of Pakistan (1956), Art. 170.
The Tariq Transport Company v. The Sargodha‑Bhera Bus Service P L D 1958 S C (Pak.) 437 ref.
H. H. Chowdhury with M. M. G. Hafez for Petitioner.
Maksumul Hakim, A. G. with K. M. Sobhan for Respondent No. 1.
Shahabuddin Ahmed and F. A. Mannan for Respondents Nos. 2 to 4.
Dates of hearing : 2nd, 3rd, 4th, 8th and 9th August 1961.
JUDGMENT
S. M. MURSHBD, J.‑The petitioner, Messrs Momin Motor Company, of which one Moulvi Abdul Aziz of 25 Haranath Ghose Road, P. S. Lalbagh, District Dacca, is the sole proprietor, has asked for the issue of a writ of mandamus or any other appropriate writ of the like nature directing the respondents to cancel, withdraw, rescind or quash resolution No. 4 passed by respondent No. 1 in its meeting held on the 31st of December 1960, and to forbear them from acting in pursuance of the said resolution as also to remove all impediments in the way of the petitioner so that the petitioner can ply twenty one buses, including those bearing numbers EBD 1931, EBD 1932 and EBD 1933 in the Tarabo‑Narsingdi Route, for which no permits were given by the respondent No. 1 in pursuance of the said Resolution No. 4.r
The petitioner claims that they run a considerable number of buses in the district of Dacca, and have been running buses on a route known as Tarabo‑Narsingdi Route for the last ten years under permits which were renewed from time to time under section 58 of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act). According to the petitioner firm, it held twenty- one valid permits to run as many number of buses in the said route and the said permits were last renewed by the respondent No. 1 on the 2nd of February 1960, under section 58 (1) of the Act. These permits were in respect of twenty‑one stage carriages (buses) belonging to the petitioner, namely, EBD 1747, EBD 1748, EBD 2914, EBD 2915, EBD 1683, EBD 1647, EBD 1648, EBD 4140, EBD 1929, EBD 4139, EBD 1649, EBD 5358, EBD 2375, EBD 1884, EBD 5688, EBD 1746, EBD 6702, EBD 4138, EBD 1931, EBD 1932 and EBD 1933. It is claimed by the petitioner that the aforesaid twenty‑one permits are valid till the 2nd of February 1963. It is averred that the respondent No. 1 cannot cancel the said permits of the petitioner, except upon the terms as laid down in sections 48 and 59 of the Act, nor can the said respondent create any obstacle in the way of the petitioner in plying buses in the said Tarabo‑Narsingdi Route until the 2nd of February 1963. The petitioner has also stated in the petition that res pondent No. 1, namely, the Regional Transport Authority, Dacca, (hereinafter referred to as the R. T. A.) at its meeting held on the 31st of December 1960, passed a resolution, which is marked as Resolution No. 4, in which it was decided to grant twenty‑one route permits in respect of the said route. It was further decided that out of these twenty‑one route permits eighteen were to be given to the petitioner with regard to its buses the numbers of which have been specified above, except for those which bear numbers EBD 1931, EBD 1932 and EBD 1933. Three other buses bearing numbers EBD 4211, EBD 6917 and EBD 3806, were given permits to run in the aforesaid route as a result of the aforesaid Resolution No. 4, dated the 31st of December 1960, and the petitioner's buses bearing numbers EBD 1931, EBD 1932 and EBD 1933, which were given valid permits on the 2nd of February 1960, became idle because no permits were given in respect of them after the 31st of December 1960. The aforesaid Resolution No. 4 reads as follows: ‑
"Heard both the representatives of the Motor Vehicles Association and Messrs Momin Motor Co. The R. T. A. considered the resolution of the Sub‑Committee and decided to accept their recommendation for the grant of 3 route permits to EBD 4211, EBD 6917 and EBD 3806. In view of the fact that the Momin Motor Co. has produced documents to show that they have changed the engines of the vehicles and keeping regard to the Home Transport Department letter No. HTA/IM 29/60/581 dated the 14th September 1960, their 18 Vehicles EBD 1747, EBD 1748, EBD 2914, EBD 1883, EBD 1647, EBD 1648, EBD 4138, EBD 4140, EBD 1929, EBD 4139, EBD 1649, EBD 5398, EBD 2375, EBD 1884, EBD 5688, EBD 1746, EBD 6702 be given route permit for three years. The question of increasing the number of vehicles on this route should be examined after receiving a report from the S. D. O. concerned. The S. D. O, Narayanganj be requested to send a report whether It Is necessary to increase the number of vehicles any further. "
It is alleged that the R. T. A. Invited applications under the provisions of section 57 of the Act and to that effect advertise ment was published in the Morning News on the 26th of November 1960. It is contended that the R. T. A. passed the aforesaid resolution without giving the petitioner any facility to inspect the applications made in response to the aforesaid adver tisement and without giving public notice to that effect. It is the petitioner's case that whereas the petitioner was awarded valid permits to run the aforesaid twenty‑one buses, till the 2nd of February 1963, the R. T. A. illegally purported to grant fresh permits in respect of the said twenty‑one buses on the 31st of December 1960, before the expiry of the period during which the petitioner held valid permits for the said twenty‑one buses, till the 2nd of February 1963. .
With regard to the granting of permits to three other buses, the petitioner's case is that the buses belonging to the petitioner, for which no permits were given, were better buses than those to which permits were given. It has also been stated that the petitioner was given no opportunity to make representations against them under section 57 (3) of the Act and furthermore, that the R. T. A. never took into consideration the f act that the petitioner was running buses in routes other than the Tarabo- Narsingdi Route at a financial loss. In substance, the petitioner's grievance is that Resolution No. 4 was passed without complying with various formalities and considerations as required by the Act. In these circumstances, the petitioner has claimed that it holds valid permits for twenty‑one buses, which permits were renewed on the 2nd of February 1960, and were valid till the 2nd of February 1963. It is therefore, claimed by the petitioner that the said Resolution No. 4, in so far as it purported to curtail the permits with regard to the petitioner's buses to eighteen, indirectly revoked the permits for the remaining three buses for which no permits were given in accordance with the impugned resolution. Secondly, it was submitted that the permits granted to twenty‑one vehicles including eighteen belonging to the petitioner and three belonging to respondents Nos. 2 to 4 were not validly given under section 58 of the Act inasmuch as the requirements of law for the granting of such permits as laid a down by the various sections of the Act were not complied with. According to the petitioner, the granting of such permits in pursuance of the impugned resolution was totally bad in law.
The respondents before us have filed separate affidavits in opposition by which they have traversed the averments made in the petition. Inasmuch as neither the petitioner nor the res pondents had stated in their respective affidavits some material particulars of this case, we allowed them to file‑further affidavits. The petitioner has stated further facts in support of its petition and on behalf of the respondents all such averments of the petitioner have been completely traversed and denied. The substance of the affidavit‑in‑opposition appears to be that the petitioner was initially granted temporary permits for a year only which the respondent No. 1 claims were given under section 62 of the Act, in the year 1949. Thereafter the petitioner was granted temporary permits annually, which were limited for a duration of a year only. It was submitted that the petitioner has suppressed this very important and vital fact in its petition as well as in the further affidavit that has been filed before us. It has only made a vague assertion to the effect that the permits were validly renewed under section 58 (1) of the Act from time to time, without specifying as to when such permits were first issued. To our mind, this is a deliberate suppression of fact on the part of the petitioner because, even if the original permits given to it may not be given under section 62, such permits purported to be temporary permits only. However, respondent No. 1 in the affidavit‑in‑opposition sworn by its Secretary has stated that the temporary permits were granted to the petitioner for the first time in 1949 in respect of the aforesaid route and has in support set out Resolution No. 1 of the R. T. A. meeting held on the 17th of December 1949, which has been marked as Annexure A to the affidavit‑in‑opposition, and it reads as follows: ‑
" Considered the petition of the proprietor, Momin Motor Co., Dacca and resolved that he be allowed temporary permits to ply his buses on the Taraba‑Narsingdi Road via Bahurhat on condition that he will make the road busworthy to the satisfaction of the District Engineer and that he will stop the bus service the moment he is desired to do so by the Super intending Engineer, Eastern Circle, Dacca. No other party will be granted any permit on this route during this period."
On the basis of the aforesaid resolution, it is the case of the respondents that purely temporary permits were given to the petitioner in respect of its twenty‑one buses mentioned above for the purpose of plying them on the aforesaid route under section 62 of the Act. The respondents have denied that the aforesaid permits, which were first issued in 1949 were given under section 58 of the Act. It is their case that the R. T. A. did not purport to grant permits to the petitioner in 1949 under section 58 of the Act. It is claimed by them that no steps were taken under section 57 of the Act and various other sections in order to grant valid permits under section 58 of the Act. It is claimed by them that the records of the R. T. A. do not show that there was any step taken either under section 57 or under any other section of the Act to give the permits under section 58. In the affidavit- in‑opposition filed on behalf of respondent No. 1 it has been specifically stated that it was for the first time towards the end of 1960, that it was decided that permits would be given under section 58 and necessary steps were taken to that effect. It is, therefore, the definite case of respondent No. 1 that neither the original permits given to the petitioner in 1949 nor the subsequent renewals of those permits were under section 58. It is clamed by them that they were merely temporary permit first issued in 1949 and the subsequent renewals were nothing more than renewals of the said temporary permits. The respondents have submitted in their affidavits‑In‑opposition that the petitioner is guilty of delay and laches as also of suppression of material facts and are not, therefore, entitled to the relief as prayed for.
Mr. Hamidul Huq Choudhury, appearing for the petitioner, submitted two points before us on behalf of the petitioner. In the first place, he has argued that the renewal of the permits in respect of twenty‑one buses belonging to the petitioner on the 2nd of February 1960, in fact, amounted to a renewal of the said permits under section 58 of the Act, for a period of three years although they, in fact, purported to be for one year. In the aforesaid premises he has argued that the granting of the permits to twenty‑one buses under section 58 of the Act in pursuance of resolution No. 4 of the 31st of December 1960, to the petitioner as well as to three other bus‑owners is totally illegal inasmuch as it tantamounts to an indirect revocation and cancellation of permits fn respect of the three buses belonging to the petitioner. He has argued that he is entitled to ask this Court to cancel the permits purported to be given to twenty‑one buses in pur suance of the impugned resolution inasmuch as it was an illegal interference with a right which has been validly conferred on the petitioner for a period of three years from the 2nd of February 1950, and ending with the 2nd of February 1963. Secondly, Mr. Hamidul Huq Choudhury has argued that the issue of the said twenty‑one permits to buses belonging to the petitioner as well as to respondents Nos. 2, 3 and 4, is invalid in law because in purporting to grant the said permits under section 58 of the Act the respondent No. 1, namely, the R. T. A. did not comply with the following provisions of the Act: ‑
(1) That respondent No. 1 did not take into consideration the fact that the petitioner, which had held permits to run buses on the aforesaid route continuously for a long period, was running buses in other routes at a financial loss.
(2) That disregarded the requirement of law to that effect that, if other things are equal, preference should be given to persons who already hold permits in respect of buses plying in the said route. In this connection it was submitted that the buses belonging to respondents Nos. 2 to 4 were of inferior quality compared to those belonging to the petitioner.
(3) That, inasmuch as there was no notice given with regard to the applications made for the issue of the said permits, the petitioner was deprived of the right to make representations against the issue of permits to respondents Nos. 2 to 4.
It is thus evident that the first branch of the argument of Mr. Hamidul Huq Choudhury bolls down to this that the renewal of the permits granted to the petitioner on the 2nd of February 1960, for a period of one year would automatically become permits for a duration of three years.
In order to appreciate this point, we would like to set out the provisions of the Act. Section 62 of the Act runs thus: ‑
"A Regional Transport Authority may at its discretion and without following the procedure laid down in section 57, grant permits, to be effective for a limited period not in any case to exceed four months, to authorise the use of a transport vehicle temporarily: ‑ "(a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings, or
(b) for the purposes of a seasonal business, or
(c) to meet a particular temporary need, and may attach to any such permit any condition it thinks fit."
Section 57 of the Act is as follows
"(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 sub stance thereof in the prescribed manner together with a notice of the date before which representations in connection there with 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 either in person or by a duly authorised representative.
(6) When any representation has 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 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 persons likely to be affected thereby.
(7) When a Regional Transport Authority refuses an application for a permit or any kind, it shall give to the applicant In writing its reasons for the refusal."
And section 58 of the Act is in the following language
"(1) A permit other than a temporary permit issued under section 62 shall be effective without renewal for such period not less than three years and not more than five years, as the Regional Transport Authority may in its discretion specify in the permit
"Provided that in the case of a permit issued or renewed within two years of the commencement of this Act, the permit shall be effective without renewal for such period of less than three years as the Provincial Government may prescribe.
" (2) A permit may be renewed on an application made and disposed of as if it were an application for a permit
"Provided that, other conditions being equal, an application for renewal shall be given preference over new applications for permits."
In support of his contention learned Advocate for the peti tioner relied upon a decision of a Division Bench of the Calcutta High Court in the case of United Motor Transport Co. Ltd. v. Sreelakshmi Motor Transport Co. Ltd. (A I R 1945 Cal. 260). The facts in that case were as follows : The plaintiffs were private limited com panies and had business in carriage of goods and passengers by motor vehicles. In 1937, when the Motor Vehicles Act of 1914 was in force, they obtained permits to ply twenty‑two motor vehicles of different types on the Sylhet‑Shillong Road from the 1st of April 1937, to the 31st of December 1939. Those permits were issued by the Assam Government under the rules framed by virtue of section 11 of the Act of 1914. In 1939 the Motor Vehicles Act of 1914 was repealed and the Motor Vehicles Act IV of 1939 (the present Act) came into force on the 1st of July 1939. By section 134 of the last mentioned Act the rules framed under the Motor Vehicles Act of 1914 were kept in force subject to some limitation and conditions for a period of nine months from the date when the Act of 1939 came into force, that is to say, those rules remained in force upto the 31st of March 1940. The Assam Government, exercising powers under those rules, which thus remained in force till the 31st of March 1940, renewed those permits 9n the 5th of December 1939, issued to the plaintiffs companies permits for a period of three months from the 1st of January to the 31st of March 1940. On the 20th of March 1940, those permits were again renewed by the Assam Government for a further period of three months from the 1st of April to the 30th of June 1940. As the old rules ceased to have force on the 31st of March 1940, the Assam Government ceased to have powers from and after that date to issue permits and did not issue further permits to the plaintiffs companies after that date. The Provincial Transport Authority of Assam was constituted by the Assam Government. No Regional Transport Authority was constituted in respect of the area over which the Sylhet -Shillong Road ran and so all the functions, powers and duties requir ed to be performed, exercised or discharged by the Regional Transport Authority were vested in the Provincial Transport Authority. Accordingly that authority on the 29th of June 1940, extended the period of the permits, that had been issued by the Provincial Government under the rules framed by virtue of the Act of 1914 to the plaintiffs companies from the 1st of July to the 30th of September 1940, and then again on the 25th of September 1940, extended them for a further period of three months from the 1st of October to the 31st of December 1940. On the 16th of July 1940, the Provincial Transport Authority of Assam issued a notice inviting applications for plying motor vehicles of different types on the Sylhet‑Shillong Road (presumably under section 57 of the Act). After considering the applications so made, the said Provincial Transport Authority granted permits on the same road to others but did not grant any permit to the plaintiffs. Thereupon the plaintiffs filed a suit praying for a declaration that they had a right to ply their vehicles on the Sylhet‑Shillong Road for a period of three years commencing from either the 1st of July or the 1st of October 1940, contending that the extension and renewal of permits given to them from the 1st of July to the 30th of September 1940, and then again from the 1st of October to the 31st of December 1940, really amounted to regular permits which were granted for three years, namely, the period for which such permit could be legally granted under section 58 of the Act. The suit was decreed and the relief s prayed for by the plaintiffs were granted. Thereupon principal defendant No. 1 preferred an appeal, which was heard and disposed of by the aforesaid Division Bench of the Calcutta High Court. After noticing the various provisions of the Act, the Division Bench observed as follows (at page 263).
"If a permit which is not Issued under section 62 of the Act, is issued by a competent Transport Authority after following the procedure laid down in section 57 of the Act, but the permit on the face of it is for a period of less than three years, that permit in our judgment would be valid for a period of three years. That is the view we take of section 58 of the Act for that section says that "without renewal" the permit shall be effective for a period of…
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