P L D 1967 Lahore 817 (PLP)

MUHAMMAD AFZAL CHEEMA, J.‑This order shall dispose of Writ Petitions Nos. 22, 416 and 889 of 1964, filed under Article 98 of the Constitution and involving similar questions of fact and law. Writ Petition No. 22 is directed against the order dated the 30th of August 1963, of the learned Member, Board of Revenue functioning as appellate authority under the Motor Vehicles Act, whereby accepting the appeal of Pindigheb Transport Company Limited he cancelled the petitioner's one route permit for the Pindigheb‑Bassal route, granted to it by the Regional Transport Authority, in its meeting of 29th and 30th of January 1963.

2. The brief facts giving rise to the petition are that two route permits on the Pindigheb‑Bassal route were advertised by the Regional Transport Authority, Rawalpindi; for which only two companies, namely, the petitioner and the Pindigheb Transport Company were the applicants. Since there were only two appli cants for two route permits, the job of the Regional Transport Authority was rendered easier, and it considered expendient to accommodate both the applicants by granting them one permit each. The Pindigheb Transport Company claiming both the permits for itself felt aggrieved and preferred an appeal against the order of the Regional Transport Authority. It was argued before the Member, Board of Revenue on behalf of the appellant that the present petitioner (who was the respondent before the Member, Board of Revenue) was not entitled to the grant of permits for two reasons, firstly that it had a poor and unenviable record of past‑performance, and three of its permits were suspended some time before, and secondly that its fleet consisted of old and condemned vehicles. It was also pointed out that the appellant had sixteen vehicles in its fleet with two recent acquisitions. In the absence of rebuttal of these allegations the learned Member, Board of Revenue allowed the appeal in so far as the prayer for cancellation of the petitioner's route permit was concerned, but declined to grant it to the appellant on the ground that its record too had not been impressive, and consequently remanded the case to the Regional Transport Authority for inviting fresh applications for the grant of permit thus rendered available.

3. The following contentions were raised by the learned counsel for the petitioner before us: (1) that the Member, Board of Revenue had no power under the Act to remand the case for inviting fresh applications, but could only direct the Regional Transport Authority to decide the case afresh between the existing applicants, (2) that the reasons for the cancellation of the permit, namely that the petitioner had old buses and a poor record of past performance were not valid grounds under the Act, being altogether extraneous considerations.

4. On the contrary, it was argued by the learned counsel appearing on behalf of the respondent that an appellate authority had all the powers of the Regional Transport Authority, and the power to grant also implied the power to refuse; and that under section 47 of the Act, the interest of the general public and the operation of service by an applicant were relevant consideration and as such the learned Member, Board of Revenue was competent and justified in passing the impugned order.

5. While admitting the petition, the learned Judges had suspended the operation of the impugned order. It would be pertinent to point out at the very outset that the authority relied upon by the Darned counsel for the petitioner at the time of admission, namely, Qazi Inayat Ullah and others v. The Province of West Pakistan and others (P L D 1956 Posh. 33) referred to in the admitting note of their Lordships no longer holds the field. In this case, which relates to the pre‑integration period, the Regional Transport Authority, Peshawar granted permits to 124 persons. On an appeal by nine of the unsuccessful candidates; the appellate authority, who was the Home Secretary in the then N.‑W. F. P cancelled all the 124 permits and remanded the case to the Regional Transport Authority for fresh decision on reconsidera tion of the relative merits of the applicants. This order was challenged before the High Court under section 223 of the Government of India Act, 1935, which took the view that the order of cancellation was in excess of jurisdiction and accordingly quashed the same. The finding of their Lordships was based on the following grounds: (i) that the Motor Vehicles Act and the rules framed there under did not precisely prescribe the scope of the powers exercised by the appellate authority, . (ii) that the powers of the appellate authority could not be unlimited so as to warrant the cancellation of permits against whom no appeal had been filed ; and (iii) that the grantees of unchallenged permits which were cancelled by the impugned order of remand were afforded no opportunity of being heard.

6. Subsequently, this question was examined by another Bench of this Court in Shahmir Transport Company Limited v. Member (Colonies and Transport) Board of Revenue, West Pakistan and others (P L D 1964 Lab. 710). In this case, three persons S, B and M were granted permits by the Regional Transport Authority, S was satisfied with the grant, while B and M appealed against the decision on the ground that one permit each to them was uneconomical. The learned Member Board of Revenue, function ing as appellate authority cancelled the permit of S on the ground that he was not an existing operator and was imported afresh to the prejudice of the latter and remanded the case to the Regional Transport Authority to reconsider the entitlement of the applicants for the grant of permits so rendered available. Feeling aggrieved, S invoked the writ jurisdiction of this Court. The main ground of his attack was that since B and M had made no representation under section 57 (3) of the Act, against his application, they had no locus standi to prefer an appeal. In support of his argument, the learned counsel for the petitioner in that case relied on Qazi Innayatullah and others v. The Province of West Pakistan and others, and their Lordships while examin ing this authority expressed their disapproval of the same in the following terms: "In that case there was no question about the locus standi of the aggrieved persons to file an appeal under section 64 of the Motor Vehicles Act, 1939, and the High Court was mainly dealing with the powers of the appellate authority in appeal to remand the case to the subordinate Authority for fresh decision. Even otherwise we are in respectful disagreement with the decision in that case. Section 64 of the Act does not define the scope of the powers vested in the appellate Authority. It merely confers a right of appeal on an aggrieved person and it does not control the powers of the appellate Authority within which it can exercise its jurisdiction. It is well known that an appeal is a continuation of the original cause and it is implicit in the exercise of appellate jurisdiction that the appellate Authority can pass all those orders which the authority trying the original cause could or ought to have made. The power of remand is merely ancillary and incidental to the powers to be exercised by the appellate Authority. It is something inherent in the appellate Tribunal. On the reasoning adopted in the above mentioned case it is difficult to foresee what relief can be granted to the successful appellant against the refusal of the permits by the lower authority if the appellate Authority is indeed powerless to cancel the limited number of the permits wrongly granted to the respondent." This view of their Lordships has been re‑affirmed recently in a Full Bench Authority. Hidayatullah Khan v. Board of Revenue West Pakistan (P L D 1966 Posh. 1) The following observation may be reproduced with advantage: "It will be manifestly clear from the definition of the term `appeal' that it is inherent in the right of appeal that the whole case, including the facts, is within the jurisdiction of the appellate authority, unless and until in a particular statute the right of appeal is whittled down or hedged in by certain limitations. In other words the appellate Court has the jurisdiction of giving all the relief which the original Court or Tribunal can give. It would, therefore, follow that the power of remand is inherent in the appellate authority in that in certain cases where the Court or Tribunal has violated the statutory provision it may become impossible for the appellate authority to give an effectual and proper decision without remitting the case to the Court of first instance. We would, therefore, hold that in absence of any restriction in section 64 on the right of remand, the prescribed authority has inherent jurisdiction to order remand."

7. In view of such authoritative pronouncements, the power of remand by the appellate authority had to be conceded by the learned counsel for the petitioner. It was nonetheless contended that the remand should have been inter partes as it could not destroy the entire proceedings already taken by the Regional Transport Authority in this regard, by throwing open the route to fresh applicants not already in the field. We are not inclined to agree with the position taken up by the learned counsel inasmuch as, while dealing with the proceedings before an Administrative Tribunal like an appellate authority under the Motor Vehicles Act, the authorities under the Civil Procedure Code in support of the proposition that the remand should be inter partes would not be strictly applicable. However, Mr. Saleem Chaudhury, who appeared for the petitioner in Writ Petition No. 889 of 1964, drew our attention to Debt Sahai v. Tara Chand and others (A I R 1918 Lah. 335), Secretary of State v. Mehraj Din and others (A I R 1933 Lab. 948) and Narendra Kumar Das and others v. The Appellate Board, Transport, Assam (A I R 1960 Assam 100). It was next argued that the relief could have been granted by the appellate authority which was seized of a limited question, only in terms of the praver made before it. Reliance was also placed in this regard on Pakistan v. Khundkar Ali Afzal and another (P L D 1960 S C 1).

8. Debt Shah! v. Tara Chand and others deals with a case of partition in which the view taken by the learned Judges was that the remand for fresh inquiry was confined as far as the appellants were concerned, and that the original decree stood as between the plaintiffs and those defendants who did not appeal. Secretary of State v. Mehraj Din and others, was a case under the Land Acquisition Act, and on appeal to the High Court by some of the objectors was remanded to the District Court. It was held that those who had not appealed from the order of the District Judge were not entitled to intervene as objectors on remand.

9. As stated earlier, these are cases under the general law and as such the authorities relied upon would not be strictly applicable to the proceedings under the Motor Vehicles Act, which are more of an administrative nature. In Tariq Transport Company, Lahore v. Sargodha Bhera Bus Service, Sargodha and others (P L D 1958 S C (Pak.) 437) it was observed by Muhammad Munir the then Chief Justice of Pakistan as follows: "Therefore, it seems to me, on careful examination of the detailed provisions of sections 47 and 57 of the Act, that these sections do not provide for a Regional Transport Authority to perform any functions of a judicial or quasi judicial nature. I cannot find that this administrative body entrusted with the application of a licensing system in relation to road passenger transport is under any duty to act judicially in ascertaining the facts upon which it may base a decision, or as to any part of the process of arriving at such decision." While differing with the view expressed by the High Court in that case that the proceedings before the Regional Transport Authority were of a quasi‑judicial nature on account of the orders of grant or refusal of permits being appealable and affecting also the fundamental right of the citizens to enter upon a lawful trade or business, his Lordship observed: "With respect, I find it impossible to accept these reasons as sufficient for coming to the conclusion that the findings of a Regional Transport Authority in granting or refusing permits are of quasi‑judicial nature." In the same case regarding the functions of an administrative Tribunal, it was observed by Muhammad Munir, C. J. as follows:‑ "In the case of an administrative tribunal, however, the emphasis is on policy, expediency and discretion to enable it to achieve the object with which it was set up. In the case of such a tribunal the approach in determining the relevant facts is therefore often subjective and not objective, there being generally no lis before it in which the parties are arrayed against each other for the enforcement of a private right or liability and who for that purpose are entitled to produce evidence and adduce argument." Further on, in the same context Shahabuddin, J. relied on the following observation made by the learned Judges in Raman & Raman Ltd v. State of Madras and another (AIR 1956 S C 463): "In proceedings under sections 47, 64 and 64‑A of the Act, there is no determination of any individual's rights and from that point of view, the functions of these authorities may be regarded as executive or administrative." As regards the last authority, Narendra Kumar Das and others v. The Appellate Board, Transport Assam no doubt it supports the contention of the learned counsel. It was observed by the learned Judges that: "If in order to give relief to the appellant it is necessary to cancel the permits granted to the respondents, it may do so, but it has got no power to cancel the permit irrespective of the fact whether it is necessary to grant relief to the appellant or not." Towards the end, it was stated that: "The Board (equivalent to the Member Board of Revenue in this country) had no power to direct the Regional Transport Authority to start afresh with renotifying the route and inviting fresh applications." We have already expressed our disagreement with this view of the learned Judges which has no binding effect on us either.

10. Regarding the next contention that the relief could be granted only in terms of the prayer contained in the petition, it may be observed that the authority relied upon by the learned counsel, namely: Pakistan v. Khondkar Ali Afzal and Speaker, National Assembly would not be applicable to the instant case, inasmuch as, it proceeded on altogether different facts and considerations as would be clear from the following observation of their Lordships: "It is of the very essence of judicial proceedings that the relief to be granted should follow as a legal result from the right alleged and found. The error in the proceedings is fundamental where the relief granted is different from the one prayed and flows not from the right alleged but from a right which has not been pleaded and as to which the Court has never heard the parties . . . . . . . This is true in all proceedings but more so in proceedings for prerogative writ where the Court does not generally act ex debito justitiae but confines the petitioner to a specific right and a specific relief." It is abundantly clear that the prayer made before the High Court in this case under writ jurisdiction was for the issue of a writ of mandamus but the one granted by the Court was in substance a writ of prohibition which in appeal was recalled by the Supreme Court. The question obviously was relatable to the scope of writ jurisdiction and as such has not even the remotest bearing on the question before us. 10‑A. In short we are firmly of the opinion that the appellate authority is competent to pass in appeal any order which the R. T. A. has the authority to pass under the law. Obviously, the right of inviting fresh applications in respect of a permit already advertised cannot be denied to the Regional Transport Authority as it is quite conceivable that it may not find any of the, previous applicants suitable or deserving and as such might deem it necessary to advertise the route afresh. This is precisely what has been laid down in the impugned order by the appellate authority to whom the exercise of powers enjoyed by the Regional Transport Authority cannot be denied. Further support is lent to this view by a Supreme Court authority The West Pakistan Transport Company v. The Transport Appellate Authority and others (P L D 1965 S C 248) in which their Lordships dismissed two Civil Appeals Nos. 63 and 64 of 1962, arising out of the grant of permits by the Provincial Transport Authority. While referring to the scope of appeal under section 64 of the Motor Vehicles Act, their Lordships were pleased to observe: "Each clause, in our view, creates an independent right and is not controlled by any other clause but the appeal is, never theless, an effective appeal and the appellate authority must be deemed in the absence of any express restrictive words in the statute to be clothed with all necessary powers to do full justice by granting the relief to which the appellant may be found entitled." We are thus in no manner of doubt that the appellate authority was competent to pass the order of remand.

11. As regards the second contention, that the past performance of the petitioner, and the allegation that its buses were old were irrelevant and extraneous consideration, we are inclined to agree with the learned counsel for the respondent that these would be covered by parts (a) and (e) of subsection (1) of section 47, which makes it incumbent on the Regional Transport Authority to keep in view while granting or refusing to grant a stage carriage permit, the interest of the public in general and the operation by the applicant of the other transport services. Surely the interest of the travelling public would include not only providing fresh transport service where it does not exist already, but also providing an efficient one to ensure which the buses must be maintained in a proper and serviceable condition. It is a matter of common knowledge that accidents often take place due to poor maintenance of the buses which should be replaced well in time. As regards the phrase "the operation by the applicant of other transport services", used in section 47 (i) (e) it was argued by the learned counsel that it did not refer to past performance of an " operator, as would be clear from the next following phrase: "and in particular of un-remunerative services in conjuction with the remu nerative services". In our view the expression "operation by the applicant of other transport services" is wide enough to cover its past performance, and cannot be meant to be construed exclusively to his advantage. If he had been running un-remunerative services in order to provide transport facilities, certainly he deserved to be rewarded for his sacrifice and public spiritedness when an opportunity arose, but it also follows from this that if on the other hand his operation in general has been remunerative for him, but a specimen of poor performance, well, certainly he should also suffer its consequences. The use of the words in the opening sentence of section 47 in deciding whether to grant or refuse would not in our view permit a narrow construction on this provision, and, therefore, as a general proposition of law, it would be competent for the appellate authority to base its finding on the poor performance and unsatisfactory record of a party before it.

12. Notwithstanding the fact that we have repelled the contentions raised by the learned counsel for the petitioner as a proposition of law, we are of the view that the petition should be allowed for the following reasons. The Regional Transport Authority had taken due care in the public interest to impose two conditions on the grantees, namely, that the vehicles should be of 1961 Model or above, and that they should not have already been accredited to the fleet of the grantees. This in our view was a sufficient safeguard to satisfy the condition of public interest. In the circumstances, the mere suspension of the petitioner's permits under section 60 of the Motor Vehicles Act of which the reasons have not been disclosed, in the impugned order, was not good enough to warrant the cancellation of its permits granted by the Regional Transport Authority. Even otherwise it appears from the impugned order that the petitioner's permits were suspended in February 1963, i.e. after the grant of the permits which are the subject‑matter of the present litigation. Suspension, therefore, being subsequent to the grant of permits would not be a relevant consideration in so far as the permits in question are concerned.

13. Yet another reason which has weighed with us in allowing this petition is, the finding of the learned Member, Board of Revenue regarding the equally unimpressive performance of the appellant before him, namely, the Pindigheb Tram‑port Company, on whose appeal the petitioner's permit was cancelled. It can safely be presumed in these circumstances that if an appeal had been filed against the Pindigheb Transport Company, it would also have met the same fate. In view of the fact that from the very outset there were two applicants for the two available permits of which each got one, it appears to be inequitable and discrimi natory to cancel the permit of one and keep that of the other intact when there was nothing to choose between the past performance of the two.

14. For the foregoing reasons we allow the petition, and declare the order of the Member, Board of Revenue as being without lawful authority and of no legal effect, with no order as to costs.

15. Writ Petitions Nos. 416 and 889 of 1964 are directed against the same order of the Member, Board of Revenue, whereby he dismissed the petitioner's appeal challenging the order of the Regional Transport Authority granting one 'B' Part permit to J. S. Karwan Transport Company on Mirpur‑Sialkot route. The brief facts giving rise to the petitions are that the Regional Transport Authority, Rawalpindi invited applications for the grant of one 'B' Part permit on Mirpur Sialkot route for which the petitioners and several others were the applicants. The Regional Transport Authority in its meeting held on 23rd, 24th and 25th of September 1963, decided to grant permits to J. S. Karwan Transport Company Limited. Feeling aggrieved the petitioners filed appeals before the Member, Board of Revenue. The latter while declining to accept the petitioners' claim, to the grant of permits, partly accepted the appeals and cancelled the permit granted to J. S. Karwan Transport Company and remanded the case for fresh decision after inviting fresh applications by re -advertising for the permit.

16. Feeling aggrieved, the petitioners have invoked the writ jurisdiction of this Court. The main contention raised by the learned counsel for the petitioners is that the Member, Board of Revenue functioning as appellate authority was not competent to throw open the route by his order of remand inviting fresh applications and that in view of their satisfactory operational record, financial soundness and the fact of their being existing operators on the route it should have considered their cases on merits. It was argued that assuming the appellate authority bad the power of remand it could only have been exercised after the petitioners were held to be unsuitable.

17. In the earlier part of the judgment, we have already repelled the main contention reagitated before us for reasons which need not be repeated. In petition No. 416 of 1964, it was argued by Mr. Irshad Hasan Khan, the learned counsel for the petitioner that R. T. A's order granting the permit to J. S. Karwan Transport Company was in clear violation of section 57(7) of the Motor Vehicles Act, on account of its failure to give reasons for refusal to grant permits to the petitioners, and while setting it aside the learned Member, Board of Revenue should have proceeded to allot the permit in favour of the petitioners instead of remanding the case for invitation of fresh applications. Having already held that the learned Member, Board of Revenue was competent to pass such an order of remand, we see no force is this contention.

18. For the foregoing reasons, the petitions fail and are hereby dismissed. However, in view of the legal issue involved the parties are left to bear their own costs. A. H. Order accordingly.