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Petitioner: EX-SERVICE-MEN PUBLIC TRANSPORT CO. (REGD.) JHELUM VS Respondent: MEMBER, BOARD OF REVENUE, WEST PAKISTAN AND OTHERS
P L D 1968 Lahore 287
P L D 1968 Lahore 287
Before S. Anwarul‑Haq and Muhammad Afzal Cheema, JJ
EX‑SERVICE‑MEN PUBLIC TRANSPORT Co. (REGD.) JHELUM‑Petitioner
Versus
MEMBER, BOARD OF REVENUE, WEST
PAKISTAN AND OTHERS‑Respondents
Writ Petition No. 337 of 1965, decided on 19th December 1966.
(a) Constitution of Pakistan (1962)---Art. 98‑Joint application by several persons‑Objection that joint application is not maintain able raised after two years‑Not entertained.
(b) Motor Vehicle Act (V of 1939)---Ss. 47, 48, 57 & 64 -Appeal‑Declaration or advertisement of route‑Appealable.
The act of declaring the route open on the part of the Regional Transport Authority is the first preliminary act of the series culminating in the grant or refusal of a permit as the case may be. Declaration is thus a part of the grant which is the whole, and no body could possibly feel aggrieved by the mere act of declaring open a route, short of actual grant of permit, inasmuch as several eventualities might supervene before the entire proceedings commencing with the declaration mature into grant of permits which in some cases quite conceivably may not happen at all. For instance a route may be declared open by the Regional Transport Authority which on reconsideration of the matter might in its wisdom revise or rescind the earlier decision. The declared route may be shortened or extended, its course might be changed or the decision may be rescinded altogether. Alternatively having once declared the route open and invited applications, the Regional Transport Authority might take quite long to finalise its decision. Thus, what can really affect adversely the interest of an existing operator is the actual grant of the permit on a particular route and not any other act short of this, much less the mere declaration. It may be pertinent to point out in this regard that the considerations to be kept in view by the Regional Transport Authority under section 47 of the Act are relatable to the grant or refusal of a stage carriage permit and not the declaration of this route permit, as would be clear from the opening sentence of the section. Similarly, the representation mentioned after part (f) of subsection (1) of this section would also be relatable to the grant or refusal and not the mere declaration of the permit. Again, the right of appeal available to an existing operator under clause (f) of section 64 is also in respect of the grant of a permit whereby he feels aggrieved. Significantly enough, even the pharseology employed here is similar, to that used in the concluding portion of subsection (1) of section 47 of the Act. Thus from an objective examination of the scheme of the Act and the relevant provisions thereunder, the definite conclusion can be drawn that the reason why a mere declaratory order had not been specifically mentioned as an appealable order in section 64 of the Act is that it does not per se constitute an independent act giving rise to certain rights and liabilities, and not because a finality attaches to it. Since the real cause of action would accrue to an existing operator only when the permit is actually granted, the term grant is wide enough to include the declaration of the route which is the first priliminary step and an essential pre‑requisite for the grant of the permit. It would thus be absurd to make appealable such a preliminary and a premature act which in the ultimate analysis may or may not mature into a grant. It, therefore, follows that no finality attaches to an order of the Regional Transport Authority declaring a route open which is a mere formality and as such does not become sacrosanct, so as not to be amenable to the appellate jurisdiction of the Member, Board of Revenue. On the contrary, an order of grant will be assailable inter alia on ground of superfluity or want of public requirement of the route so declared, fixing the number of permits to' be granted on it. This of course, is to be subject to the fulfillment of the conditions laid down in clause (f) of section 64, namely, that the appellant, if he is an existing operator should have opposed the grant of the permit.
The proper stage for the filing of representations is not when the route is notified, in this context but when applications are invited.
Clause (a) of section 64 of the Act confers the right of appeal on an unsuccessful applicant who feels aggrieved by the order of refusal. On the other hand, clause (f) of this section gives the right of appeal inter alia to an existing operator who himself is not an applicant but nonetheless has opposed the grant inasmuch as the route is bound to hit his monopoly or otherwise affect his interest adversely when he, according to his own view is fully catering to public transport requirements, and deems the fresh route wholly unnecessary. Thus the only logical conclusion deducible from this would be that the declaration or advertise ment of the route is amenable to appeal and is fully covered by the provisions contained in section 64(f), inasmuch as, it would be wholly immaterial for an existing operator, whether the route for which he himself is not a candidate is given to `A' or to `B'. In fact this would be the only situation calling for the invocation of the provision contained in section 64(f) in so far as an existing operator is concerned, which otherwise, would have no occasion for being pressed into service.
A limit once fixed by the Regional Transport Authority cannot be increased by the appellate authority, but certainly there can be no such restriction on the decrease of a limit, inasmuch as the appellate authority being administratively superior to the Regional Transport Authority capable of substituting its own judgment would not be confronted in such an eventuality with the legal hurdles that it has to face by ordering an increase, which would result in the nullification of the statutory provisions of section 57.
An objection could be taken in respect of a newly advertised permit on two grounds, namely, the adequacy of the existing services and want of necessity or the number of the permits being in excess of actual requirement. Once it is conceded that an order passed by the Regional Transport Authority fixing the number of permits in excess of actual requirements is assailable in appeal, it would inevitably follows as a necessary corollary from this that an appeal could be preferred against the very declaration of a permit on the ground of total absence or complete want of necessity.
Chittoor Conveyance Corporation v. R. T. A. 1960 Andh L T 156 ; Tariq Transport Co. Lahore v. Sargodha‑Bhera Bus Service P L D 1958 S C 437 ; Messrs Tando Adam Transport Company Ltd, Tando Adam v. Member, Board of Revenue, West Pakistan and others P L D 1964 Kar. 283 ; Abdul Matin v. Ram Kailash A I R 1963 S C 64 and Ikram Bus Service v. Board of Revenue, West Pakistan P L D 1963 S C 564 ref.
(c) Motor Vehicles Act (IV of 1939)-----S. 47‑Route permit- Survey of route‑Chairman, R. T. A. visiting area and respectable members of public requesting for provision of direct link between two terminii of route‑Formal survey, held, not necessary, in circumstances of case‑West Paki3tan Motor Vehicles Ordinance (XIX of 1965), S. 50(1) (a).
The Chairman's personal visit to the area and the representa tions made by respectable members of the public requesting him to provide direct link between the two terminii of the route, may be deemed to be a sufficient justification for dispensing with the carrying out of a formal survey regarding which unlike the provisions contained in section 50(l)(a) of the Motor Vehicles Ordinance of 1965, there was no statutory provision as such in the Act, except some departmental instructions. No doubt, section 47 would impliedly suggest the necessity of a survey for which no mode was prescribed and it appears that ex facie the declaration of a route may be deemed to have been ordered in view of public necessity assumed by the Chairman, R. T. A. before whom some representations were made when he visited the area as Commissioner. But on the propriety or adequacy of survey and the existence of public necessity, the Member, Board of Revenue, functioning as appellate authority being a superior administrative Tribunal was certainly competent to substitute his own judgment unlike this Court sitting in exercise of writ jurisdiction.
Tariq Transport Co., Lahore v. Sargodha‑Bhera Bus Service PLD 1958 SC 437 ref.
(d) Motor Vehicles Act (V of 1939)----Ss. 64 & 57(3)‑Person not submitting representation against grant of permit‑Cannot raise oral objections at time of consideration of grant of route permit‑Existing operator, opposing grant of permit, can file appeal under S. 64(f).
It is clear from the language of subsection (3) of section 57 of the Act that the applications for the grant of permits and the representations received in opposition to such grant are to be considered simultaneously. A party which has not submitted timely representation in opposition to the grant has obviously no locus standi to raise oral objections at the time of consideration, except of course, an applicant who by implication may be deemed to be opposing the grant in favour of the rival candidate and as such need not specifically send representations.
The Government Transport Service being an existing operator on the route in question had opposed the grant of permits, and as such was competent to file an appeal under section 64(f) of the Motor Vehicles Act, in which inter alia the Authority's decision to throw open the route for the grant of permit can also be challenged.
Messrs Shamshir Transport Company Ltd. v. Member, (Colonies and Transport) Board of Revenue, West Pakistan P L U 1964 Lah. 710 ref.
Zia Mahmood for Petitioner.
Nemo for Respondent No. 1.
S. Abid Hussain for Respondent No. 5.
Date of heating: 16th November 1966.
JUDGMENT
MUHAMMAD AFZAL CHEEMA, J.‑----This judgment shall dispose of Writ Petitions Nos. 337 of 1965, 1435 and 1467 of 1964, filed under Article 98 of the Constitution and involving similar questions of fact and law.
2. Writ Petition No. 337 of 1965 filed by the Ex‑Servicemen Public Transport Co. Jhelum, and Writ Petition No. 1435 of 1964, jointly filed by Messrs Jet Transport Company and Chakwal Transport Company are directed against the same order of the Member, Board of Revenue, functioning as Appellate Authority under the Motor Vehicles Act (hereinafter called the Act), whereby he cancelled one permit each of the petitioners in the last mentioned petition, on Chuha Sayyedan Shah‑Lahore via Chakwal route, granted by the Regional Transport Authority, Rawalpindi on 21st of January 1964. This order disposed of thirteen appeals of which appeal No. 283 was filed by the Government Transport Service, contending that in fact there was no public necessity for the grant of permit on the route in question. In the remaining twelve appeals the contention was that the appellants cash had not been considered on merits and that the Regional Transport Authority had given no reasons for the decision under appeal. It is partinent to point out that each of these twelve appellants claimed the route in question on the ground of better qualifica tions. But taking the view that there was no necessity of any permits at all on the Chuha Sayyadan Shah route, the learned Member, Board of Revenue allowed the appeal filed by the Government Transport Service and cancelled the permits of the aforesaid recipients. The other twelve appeals were, however, dismissed.
3. The grievance of the Ex‑Servicemen Public Transport Company, petitioner in Writ Petition No. 337 is that the Regional Transport Authority, Rawalpindi, in its meeting held on 12th and 13th of August 1963, on a representation made by it in the first instance decided to grant two temporary route‑permits to it on Chuha Sayyedan Shah‑Lahore via Chakwal route, but later on 16th of August 1963, on re‑consideration of its earlier decision, cancelled the same, but simultaneously with it decided to throw open two 'B' part permits on this route and invited applications for the same. It was contended that the original order of the Regional Transport Authority and the appellate order of the Member, Board of Revenue were illegal and without lawful authority, and should be declared as such, with a direction to the former to consider the petitioners' case afresh on merits.
4. The petitioners in Writ Petition No. 1435 of 1964, 'Jet Transport Company' and the 'Chakwal Transport Company' being recipients of the permits in question obviously felt aggrieved by the cancellation of the permits and, therefore, challenged the legality of the impugned order.
5. Following, however, were the common contentions raised by the learned counsel for the petitioners in both the cases:
(1) that the decision of the Regional Transport Authority throwing open the routes under section 48 of the Act was not amenable to appeal under section 64 of the Act, and, as such, the appellate authority was not competent to reverse this order which had attained finality.
(2) that assuming an appeal was competent against an order of declaration of routes, the Government Transport Service being neither an existing operator, nor having filed objections under section 57 of the Act had no locus standi to file an appeal.
(3) that the appellate order was without jurisdiction inasmuch as, the Member, Board of Revenue had laken into consideration extraneous matters, namely, the mode and method of survey and the interest of Government Transport Service, which have no legal basis.
6. Before proceeding to examine these contentions, we would like to dispose of a preliminary objection raised by the learned counsel for the respondents to the maintainability of petition No. 1435 of 1964, on the ground that it had been jointly filed by two petitioners. The objection can be brushed aside on the simple ground that it is being raised at a rather late stage, as the petition was admitted as far back as 9th of October 1964.
7. Coming now to the first contention which in fact is the main question for determination in the case, namely, the appeal ability of the order of the Regional Transport Authority, declaring open a certain route, we have to examine the entire scheme of the Act itself. Section 47 of the Act lays down the general principles and the relevant considerations, which the Regional Transport Authority has to keep in view, while granting or refusing a stage carriage permit to an applicant. They relate mostly to the interest and convenience of the traveling public, e.g. the availability or adequacy of the existing road passenger transport services, the benefit of localities sought to be served, the operation by the applicant of other transport services, the condition of roads, and representations if any made by the existing operators, etc. The next section 48 is supplementary to section 47, and deals with the powers of the Regional Transport Authority regarding matters incidental to the grant of a permit, such as limiting the number of stage carriages, issuing a permit in respect of a particular stage carriage or a particular service of the stage carriages regulation of timings, attachment of any of the prescribed conditions, etc. Section 57 of the Act lays down the details of the procedure for making applications, inviting objections and representations and their mode of disposal. Section 64 deals with appeals, laying down the conditions of filing an appeal and the orders against which it could be prefer red. For a proper appreciation of the correct position these provisions are reproduced in the same sequence.
"47.‑(1) 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 time 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 carriage 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 commenced 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;
(ii‑a) 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."
"57.‑(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 substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith 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 heard either in person or by a duly authorised representative.
(6) When any representation had 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 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 person likely to be effected thereby.
(7) When a Regional Transport Authority refuses an applica tion for a permit of any kind, it shall give to the applicant in writing its reasons for the refusal."
8. Having carefully examined the scheme of the statute, we are of the view that the act of declaring the route open on the part of the Regional Transport Authority is the first preliminary act of the series culminating to the grant or refusal of a permit as the case may be. Declaration is thus a part of the grant which is the whole, and no body could possibly feel aggrieved by the mere, act of declaring open a route, short of actual grant of permit B inasmuch as several eventualities might supervene before the entire proceedings commencing with the declaration mature into grant of permits which in some cases quite conceivably may not happen at all. For instance a route may be declared open by the Regional Transport Authority which on reconsideration of the matter might in its wisdom revise or rescind the earlier decision. The declared route may be shortened or extended, its course might be changed or the decision may be rescinded altogether. Alternatively having once declared the route open and invited applications the Regional Transport Authority might take quite long to finalise its decision. Thus, what can really affect adversely the interest of an existing operator is the actual grant of the permit on a particular route and not any other act short of this, muchless the mere declaration 1t may be partinent to point out in this regard that the considera tions to be kept in view by the Regional Transport Authority under section 47 of the Act are relatable to the grant or refusal of a stage carriage permit and not the declaration of the route permit, as would be clear from the opening sentence of this section. Similarly, the representation mentioned after part (f) of subsection (1) of this section would also be relatable to the grant or refusal and not the mere declaration of the permit. Again, the right of appeal available to an existing operator under clause (f) of section 64 is also in respect of the grant of a permit whereby he feels aggrieved. Significantly enough, even the phraseology employed here is similar, to that used in the concluding portion of subsection (1) of section 47 of the Act. Thus from an objective examination of the scheme of the Act and the relevant provisions thereunder, we have come to the definite conclusion that the reason why a mere declaratory order had not been specifically mentioned as an appealable order in section 64 of the Act is that it does not per se constitute an independent act giving rise to certain rights and liabilities, and not because a finality attaches to it. Since the real cause of action would accrue to an existing operator only when the permit is actually granted, the term grant is wide enough to include the declaration of the route which is the first preliminary step and an essential pre‑requisite for the grant of the permit. It would thus be absurd to mare appealable such a preliminary and a premature act which in the ultimate analysis may or may not mature into a grant. It, therefore, follows that no finality attaches to an order of the Regional Transport Authority declaring a route open which is a mere formality and as such does not become sacrosanct, so as not to be amenable to the appellate jurisdiction of the Member, Board of Revenue. On the contrary, an order of grant will be assailable inter alia on ground of superfluity or want of public requirement of the route so declared, fixing the number of permits to be granted on it. This, of course, is to be subject to the fulfilment of the conditions laid down in clause (f) of section 64, namely, that the appellant, if…
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