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Petitioner: K. B. MUHAMMAD YAQUB VS Respondent: THE SECRETARY, PROVINCIAL TRANSPORT AUTHORITY, KARACHI
P L D 1959 (W
P L D 1959 (W. P.) Karachi 507
Before B. Z. Kaikaus and Wahiduddin Ahmed, JJ
K. B. MUHAMMAD YAQUB‑Petitioner
versus
THE SECRETARY, PROVINCIAL TRANSPORT AUTHORITY, KARACHI and another‑Respondents
Writ Petition No. 649 of 1958, decided on 5th May 1959.
(a) Motor vehicle---
--‑Route permit‑Application for, in response to public notice‑Secretary P. T. A. intimating by routine letter that permits will be issued after inspection of vehicle‑Actual permits may not be issued even if letter supposed to be sanction of application‑Motor Vehicles Rules 1940, r. 52 not attracted.
(b) Motor Vehicles Act (IV of 1939)-----
-----S. 51 (a)"Type" Does not refer to car being new or old or produced in particular pear.
Section 51 (a), Motor Vehicles Act, 1939 only enables Provincial Transport Authority to limit the number of contract carriages either generally or with reference to any specified type. The word `type', however, cannot refer to the car being new or old or having been produced in a particular year. `Type' relates obviously to the construction of the car (including even its colour) but if two cars be identical in their construction they cannot be said to be of different types just because they were made in different years.
(c) Motor Vehicles Act (IV of 1939)------
----Ss. 47, 50, 53 & 55-- Permits‑Applications for‑Decision to be made on considerations of matters enumerated in respective sections and no other.
While deciding applications for various permits under the Motor Vehicles Act a Transport Authority can (in addition to fitness of the vehicles) take into consideration only the matters enumerated in sections 47, 50, 53 and 55 and no others.
(d) Motor Vehicles Act (IV of 1939)------
---S. 60‑Cancellation or suspension of permit‑No obstacle in way of issuing fresh permit except in case falling under S. 53.
The suspension of a previous permit will not stand in the way of the Provincial Transport Authority granting a fresh permit even for the same vehicle to an applicant.
The Motor Vehicles Act does not, except in cases falling under section 53, make the revocation of the previous licence an obstacle in the way of issuing a fresh permit. This appears to have been done deliberately for revocation of a permit may, in a large number of cases, not have any effect on the issue of a fresh permit. A permit may have been cancelled because the driver charged more fare than was allowed under the rules or because the fare meter was not properly working or there was some other requirement in respect of the vehicle which was not complied with.
Moti Lal v. Uttar Pradesh Government A I R 1951 All. 527 ref.
(e) Motor Vehicles Act (IV of 1939)------
----S. 50‑P. T. A. not empowered to insist that applications for permits must relate to "new" cars or `fleet of ten" cars.
The Provincial Transport Authority has no power to pro mulgate a general order that applications must, relate to "new" cars or to "fleets of ten". They have no power to pass this order, firstly, because they. cannot frame any general rules and must determine each application presented to them on its merits and, secondly, because the only matters which they are entitled to consider when deciding the applications are those mentioned in section 50 and the orders which they pass should be within section 51. The refusal to entertain an application on the ground that it is not accompanied by applications for nine other permits by the same owner is not in accord with the provisions of the Motor Vehicles Act. The Transport Authority is bound under the Motor Vehicles Act to consider an application for one permit. It is necessarily implied in the provision which entitles any person to apply for a permit that the filing of applications for more permits cannot be a condition precedent for entertaining an application for one permit.
(f) Mandamus----
-‑Right to have matter decided by public servant‑Right to have excluded from consideration, while taking decision, matters illegal‑Rights may be enforced by application for writ of mandamus.
It is the right of every person in a case where there is public duty cast on a public servant to decide a matter which will affect the interest of a citizen, to have such matter decided. This is a legal right which can be subject of enforcement by means of a writ of mandamus. Writs of mandamus are not issued only for protection of rights of property or status. They are also issued to enforce the right to have a matter decided. The right to have a matter decided means a right to have a matter decided in accordance with law. If there be a considera tion on which a public officer is going to act in deciding a matter and by law he cannot take that matter into consideration, a mandamus can be issued to him to exclude such matters from consideration. That is involved in the right of the person concerned to have an application determined in accordance with law. He has a right that the public officer should take into consideration only the matters which the law requires him to consider and give a decision on their basis.
Kings v. London County Council 1951 A E R 257 ref.
(g) Motor Vehicles Act (IV of 1939)------
-----S. 50‑Motor Rickshaw --Permit to ply as taxi‑Cannot be refused on ground that Rickshaw was not purchased on permit granted by Chief Commis sioner.
The consideration whether a taxi was purchased on a permit issued by the Chief Commissioner is wholly foreign to the Motor Vehicles Act. The Motor Vehicles Act cannot possibly intend that a person should be refused a permit for a rickshaw because he had purchased it on a permit which he had obtained from the Controller of Imports or some other competent authority and not from the Chief Commissioner.
The Provincial Transport Authority cannot be allowed to abdicate their functions in favour of the Chief Commissioner. They must apply their own mind in respect of matters which are within their cognizance and take a decision themselves. Even the fact that the Chief Commissioner is an appellate authority does not entitle them to reject an application on the ground of a general order passed by the Chief Commissioner. An appellate authority cannot merely, because it happens to be an appellate authority, give general directions to the original authority as to how matters are to be decided.
(h) Motor Vehicles Act (IV of 1939)------
----S. 50‑Motor cycle converted into rickshaw‑No ground for refusing permit.
Ghulamali for Petitioner.
S. A. Nusrat for Respondents.
Dates of hearing : 19th, 20th and 24th February 1959,
JUDGMENT
KAIKAUS, J.‑This judgment will dispose of Writ Petitions Nos. 612, 648, 649, 574, 575, 393 and 81 of 1958, points arising in which are partly common.
2. In Writ Petitions Nos. 612, 648 and 649 of 1958 the facts are that applications for permits to ply "baby" taxis under section 49 of the Motor Vehicles Act were submitted to the Provincial Transport Authority in April and May 1958. This was in response to a public notice by the Provincial Transport Authority that henceforth permits in respect of baby taxis would be given to companies as well as individuals if the cars were of a model not earlier than 1952 and some other conditions as to colour etc. were satisfied. The petitioners allege that on account of this notice they were encouraged and invested their money for the purpose of baby taxis. Each of the three petitioners received in reply to his application the following letter from the Provincial Transport Authority :‑
"You are requested to produce your vehicle for inspection within a fortnight from the date of receipt of this letter. Regular permit will be issued after inspection of the vehicle".
The petitioners did produce their vehicles in accordance with the direction contained in this letter. The Vehicle inspector found the vehicles to be otherwise fit but they did not comply with the requirements of the Provincial Transport Authority with respect to colour and fare meter. This was pointed out and the. petitioners then got their vehicles properly coloured and fitted with meters and produced them before the Vehicle Inspector but permits were refused on the ground that in view of a resolution of the Provincial Transport Authority in the meantime, that is on the 14th of June 1958, only a fleet of ten or more cars owned by an individual or a company could be registered and applications for registration of less than ten cars as taxis were not to be entertained at all. In this resolution it had also been decided that only new and unregistered cars could be granted permits as taxis. Public notice of this decision had been given through the press.
3. The Motor Vehicle Inspector before whom the vehicles were produced informed the petitioners of this resolution orally. The petitioners then made representations to the Secretary, Provincial Transport Authority, saying that they had invested money in response to the first notice of the Provincial Transport Authority and had fulfilled all the requirements of that notice. However, neither any permit was issued to the petitioners nor was any reply in writing communicated at which the petitioners, after serving notice through counsel, filed the present writ petitions.
4. In these three writ petitions, the points urged are :‑
(1) That the letter of the Secretary, Provincial Transport Authority reproduced above amounted to the sanctioning of the application for the grant of permit and the Provincial Transport Authority were bound to issue a permit when the vehicle was produced for inspection in accordance with the direction given in the letter, and
(2) that the decision of the Provincial Transport Authority that they would register baby taxis only if they, are new and unregistered and in fleets of ten is illegal.
5. As regards the first contention, it is conceded by learned counsel for the respondents that after the issue of the letter repro duced above if the vehicle was found by the Motor Vehicle Inspector to be fit, a regular permit was to be issued as a matter of course. In spite of this concession, however, we would not hold that the application for a permit had already been sanctioned. In the first place, it will be observed that this letter is not even signed by the Secretary, Provincial Transport Authority, and is only in cyclostyle. It appears that such letters were issued in ordinary routine to all persons who had applied for permits for baby taxis in view of the decision of the Provincial Transport Authority that they would register baby taxis in future. It will be observed, secondly, that ultimately there was a refusal to issue a permit even after the vehicle was inspected. On inspection, it had been found that it was not of the required colour and was not fitted with a meter. There was no bar to the Provincial Transport Authority saying that they would inspect the vehicle before they sanctioned the application for a permit. But in any case the point to be decided is whether the application for a permit had already been sanctioned. Even if there was contained in the letter a promise that on production of the vehicle permit will be issued, it still would not amount to a sanction of the application. Learned counsel for the petitioners has in this connection relied upon Rule 52 of the rules framed under the Motor Vehicles Act in order to show that the sanction of the application is not exactly the same thing as the actual issue of the permit. Rule 52 runs :‑
"(a) Save in the case of a temporary permit, where the registration mark of the vehicle is to be entered on the permit and the applicant is not at the date of application in possession of the vehicle duly registered, then the applicant shall within one month of the sanction of the application by the Regional Transport Authority, or such longer period as the Authority may specify, produce the certificate of registration of the vehicle before that authority in order that particulars of the registra tion mark may be entered in the permit.
(b) No permit shall be issued until the registration mark of the vehicle to which it relates has, if the form of permit so requires, been entered therein and in the event of applicant failing to produce the certificate of registration within the prescribed period the Regional Transport Authority may revoke its sanction of the application".
6. We will concede that even after an application had been sanctioned an actual permit may not be issued till some for malities have been complied with but we do not agree that the letter relied upon is an order passed under Rule 52. Under this rule it is only for the purpose of noting the registration mark of the vehicle in the permit that the issue of a permit is postponed and it is only the certificate of registration and not the vehicle itself that is to be produced. Here it was the vehicle that was to be produced and it was not to be produced for noting the registration mark but for inspection. We would reject, therefore, the first contention. We have not found it necessary to go into the question whether the Secretary had authority delegated to him by the Provincial Transport Authority for issue of permits for contract carriages. The letter in question had been issued not by the Provincial Transport Authority itself but by the Secretary. The contention was that the authority could be delegated under the rules to the Secretary for the issue of contract carriage permits and that it had been delegated. Learned counsel for the respon dents accepted that such authority could be delegated but did not accept that it had been delegated.
7. Before proceeding to discuss the second contention raised, it will be convenient to reproduce the relevant provisions of the Motor Vehicles Act:
"2 (3) `Contract carriage' means a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum and from one point to another without stopping to pick up or set down along the line of route passengers not included in the contract ; and includes a motor cab notwithstanding that the passengers may pay separate fares.
"Explanation.‑`Contract carriage' does not include a motor vehicle, possession of which has been temporarily transferred in accordance with an express agreement of hire for use as a private vehicle and which is used in accordance with the terms of such agreement".
"22. (1) No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place for the purpose of carrying passengers or goods unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner.
(2) Nothing in this section shall apply to a motor vehicle while being driven within the limits of jurisdiction of one registering authority to or from the appropriate place of registration for the purpose of being registered under sections 23, 25 or 3) or to a motor vehicle exempted from the provisions of this Chapter while in the possession of a dealer in motor vehicles".
"23. Subject to the provisions of section 25 and section 39, every owner of a motor vehicle shall cause the vehicle to be registered by a registering authority in the Province in which he has the residence or place of business where the vehicle is normally kept."
"25. (I) Notwithstanding anything contained in section 23, the owner of a motor vehicle may apply to any registering authority to have the vehicle temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary certificate of registration and a temporary registration mark.
(2) A registration made under this section shall be valid only for a period not exceeding one month, and shall not be renewable."
"29. (1) When a motor vehicle registered in one Province has been kept in another Province for a period exceeding twelve months, the owner of the vehicle shall apply to the registering authority, within whose jurisdiction the vehicle then is, for the assignment of a new registration mark and shall present the certificate of registration to that registering authority.
(2) The registering authority, to which application is made under subsection (1), shall assign the vehicle a registration mark in accordance with the Sixth Schedule to be carried thenceforth on the vehicle and shall enter the mark upon the certificate of registration before returning it to the applicant and shall in communication with the registering authority by whom the vehicle was previously registered arrange for the transfer of the registration of the vehicle from the records of that registering authority to its own records.
(3) A Provincial Government may make rules under section 41 requiring the owner of a motor vehicle not registered within the Province, which is brought into or is for the time being in the Province, to furnish to a prescribed authority in the Province such information with respect to the motor vehicle and its registration as may be prescribed."
"33. (1) A registering authority or other prescribed authority which has reason to believe that any motor vehicle within its jurisdiction is in such a condition that its use in a public place would constitute a danger to the public, or that it fails to comply with the requirements of Chapter V or of the rules made there-under, may, after giving the owner an opportunity of making any representation he may wish to make, for reasons to be recorded in writing, suspend the certificate of registration of the vehicle until the defects are remedied to its satisfaction.
(2) An authority other than a registering authority shall, when making a suspension order under subsection (1), intimate in writing the fact of suspension and the reasons therefore to the registering authority within whose jurisdiction the vehicle is at the time of the suspension.
(3) Where the registration of a motor vehicle has been suspended under subsection (1) for a continuous period of not less than one month, the registering authority, within whose jurisdiction the vehicle was when the registration was suspended, shall, if it is not the original registering authority, inform that authority of the suspension ; and when the suspension has continued without interruption for a period of not less than six months, the registering authority, within whose jurisdiction the vehicle was when the registration was suspended, may, if it is the original registering authority, cancel the registration, and if it is not the original registering authority, shall forward the certificate of registration to that authority which may cancel it forthwith.
(4) The owner of a motor vehicle shall, on the demand of a registering authority or other prescribed authority which has suspended the certificate of registration of the vehicle under this section, surrender the certificate of registration and any token or card issued to authorise the use of the vehicle in a public place.
(5) A certificate of registration and any token or card surrendered under subsection (4) shall be returned to the owner when the order suspending registration has been rescinded and not before.
"42. (1) No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or Provincial transport authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used.
Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage:
Provided further that a stage carriage permit' may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a good vehicle either when carrying passengers or not:
Provided further that a public carrier's permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him "
"46. An application for a permit to use a motor vehicle as a stage carriage (in this Chapter referred to as a stage carriage permit) shall contain the following particulars, namely :‑
(a) the type and seating capacity of the vehicle in respect of which the application is made;
(b) the route or routes on which or the area within which it is intended to use the vehicle ;
(c) the time table, if any, of the service to be provided ; and
(d) such other matters as may be prescribed".
"47. (l) 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 tithe 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 carriages 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 com menced 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 ;
(iia) 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."
"49. An application for a permit to use a motor vehicle as a contract carriage (in this Chapter referred to as a contract carriage permit) shall contain the following particulars, namely :‑
(a) the type and seating capacity of the vehicle ;
(b) the area for which the permit is required ;
(c) in the case of a motor vehicle other than a motor cab, the manner in which it is claimed that the public convenience will be served by the vehicle ; and
(d) any other particulars which may be prescribed".
"50. A Regional Transport Authority shall, in deciding whether to grant or refuse a contract carriage permit, have regard to the extent to which additional contract carriages may be necessary or desirable in the public interest, and shall also take into consideration any representations which may then be made or which may previously…
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