P L D 1966 (W (PLP)

MUHAMMAD AFZAL CHEEMA, J.‑This judgment will dispose of Writ Petitions Nos. 1670, 1671, 1674, 1675, 1682 and 1685 of 1965, in all of which the facts and law points involved are identical.

2. In Writ Petition No. 1670 of 1965, the petitioner, Wahid Bus and Mailsi Transport Company Limited, Multan, has called in question two orders, one passed by the Chairman, Regional Transport Authority, Multan dated the 4th August 1965, granting two temporary route permits to respondent No. 2 from Multan to Mailsi Syphon popularly known as Mailsi Phon, and the other passed by respondent No. 3 on 18th August 1965, dismissing the petitioner's appeal against the aforesaid order of the Chairman, Regional Transport Authority, as incompetent. This Writ Petition under Article 98 of the Constitution has been filed to have the aforesaid orders declared to be without lawful authority and of no legal effect.

3. The facts giving rise to the writ petition briefly are that the petitioner‑company is one of the several existing operators on Multan‑Mailsi route, the two places being connected by 53 miles of metalled road. Nine miles beyond Mailsi there is a Syphon connected with Mailsi by a Kutcha Track, belonging to the West Pakistan WAPDA who are carrying on some construc tion work at the 7th mile. As stated earlier the two temporary permits granted to respondent No. 1, covered the entire route from Multan to Mailsi Phon (Syphon), comprising 53 miles of metalled road and nine miles of Kutcha Track. Besides, regular rail service between Multan and Mailsi, there are several transport services catering to the transport requirements of the travelling public. Almost mid way between Multan and Mailsi, there is another important station Tibba Sultanpur and Multan‑Tibba. Sultanpur sector is 32 miles long route on the main highway.

4. Earlier also, the Regional Transport Authority, Multan granted temporary permits to another company, Messrs Mailsi Phon Transport Company from Multan to Mailsi Phon, but the present petitioners successfully challenged this in an appeal before respondent No. 3, which was accepted by him vide his order dated 19th August 1964 (Annexure 'B') and the temporary permits thus granted were cancelled. However, subsequently again while accepting the recommendation of the Secretary, R. T. A., Multan, the Chairman of the Authority granted two particular temporary permits to respondent No. 1, vide his order dated 4th August 1965. But this time, the petitioner's appeal though preferred before the same Member Board of Revenue, i.e., respondent No. 3, who had accepted their previous appeal on the same facts, met with no success and was disallowed by a laconic order (Annexure 'D') saying "temporary permits. No appeal. No stay". Hence the present Writ Petition. 4‑A. It appears that the learned Member, Board of Revenue in another case Arif Ullah Khan v. R. T. A., Peshawar (unreported), etc. decided by him on 11th August 1965, had taken the view that the right of appeal did not exist in respect of temporary permits. The argument was that since section 64 of the West Pakistan Motor Vehicles Ordinance under which temporary permits were granted had expressly taken away the right to object by excluding the procedure under section 59, it had also by necessary implication taken away the right to appeal. According to the learned Member, the right to appeal was based on the right to object. This, however, was a speaking order and on the same analogy the aforesaid short order was passed although no specific reference was made to the speaking order mentioned above.

5. We had the benefit of the valuable assistance of Mr. Muhammad Saleem Chaudhri, Advocate, assisted by Mr. Gul Muhammad Khan, Advocate, and Doctor Nasim Hasan Shah assisted by Qazi Ata Ullah for the respondents and 'elaborate arguments ware addressed by the learned counsel on both sides. On behalf of the petitioner, the following contentions were raised: (i) The impugned order passed by respondent No. 3 declining to entertain the petitioner's appeal was wholly without jurisdiction ; (ii) That the order was bad in law, inasmuch as an erroneous view had been taken regarding the non‑maintainability of an appeal against the grant of temporary permit, and in any case, it should have been a speaking order, giving reasons for not entertaining the petitioner's appeal ; (iii) The Chairman, R. T. A., Multan was not competent to grant the impugned permits within the meaning of subsection (2) of section 64 of the West Pakistan Motor Vehicles Ordinance 1965, inasmuch as, such a power could be delegated to him only in respect of cases falling under category (d) of sub section (1) of section 64 of the Ordinance, which relate to pending applications for the grant of permits other than temporary permits. (iv) The permits were granted in a clandestine manner without any notice to the existing operators, who per force could not raise any objection but had all the same a right to prefer an appeal, and even otherwise, since section 64 dealing with the grant of temporary permits dispensed with the procedure laid down in section 59 which envisaged filing of objections, the appeal would be competent even without such an objection having been filed ; and (v) In case of doubt regarding the maintainability of an appeal, a beneficial construction should be placed and the benefit should go to the petitioner and, therefore, refusal by respondent No. 3 to entertain the appeal was tantamount to refusal to exercise jurisdiction vesting in him.

6. The petition was resisted by the learned counsel for respondent No. 1 on the following grounds: (i) The petitioners were not an aggrieved party and had no locus stand! to invoke the jurisdiction of this Court under Article 98 of the Constitution, inasmuch as no legal .right vested in them as such, of which an infringement could be alleged, particularly when they were not a party to the proceedings before the Chairman, R. T. A. (ii) Right of appeal not being inherent, has to be specifically provided in and conferred by the statute and the only relevant provision in this regard is the one contained in section 66(i)(f) of the Motor Vehicles Ordinance, 1965. In order to qualify for the invocation of this provision, the person providing transport facilities should have opposed the grant of permits, and since section 59 dealing with such opposition in the form of objections or representations was expressly excluded from operation in regard to temporary permits granted under section 64, the appeal was not competent. (iii) Delegation of powers of the Chairman to grant temporary permits did exit under rule 4.1‑A of the Mortor Vehicles Rules framed under section 68 of the Mortor Vehicles Act, and that the delegation under the Motor Vehicles Act should be considered to be a proper and valid delegation by virtue of the saving provisions contained in section 122 of the successor Ordinance.

7. Before dealing with the contentions raised by the learned counsel on either side, it would be useful to refer to the relevant provisions of the Motor Vehicles Act as adopted or amended by the West Pakistan Motor Vehicles Ordinance of 1965. The Motor Vehicles Act of 1939 was amended from time to time, was finally repealed by the West Pakistan Motor Vehicles Ordinance of 1965, which came into force on 8th of June 1965, and was approved by the Assembly on the 10th of July 1965. Subsection (1) of section 122 which is the concluding section in the Ordinance had the effect of repealing the Motor Vehicles Act of 1939 with all its subsequent amendments in force in various units now constituting the province of West Pakistan. Besides introducing a few amendments the law relating to Motor Vehicles was also consolidated.

8. It has to be borne in mind that at the time first impugned order was passed on 4th August 1965, the Motor Vehicles Ordinance of 1965 had already been promulgated on 8th June 1965. But despite the repeal of the earlier statutes, subsection (2) of section 122 of the Ordinance, however, saved all previous actions taken powers conferred and rules made under the repealed enactments in so far as the they were not inconsistent with the provisions of the Ordinance. Section 122 reads as follows: "122. (1) The enactments specified in the Twelfth Schedule are hereby repealed to the extent specified against each. (2) Notwithstanding the repeal of the enactments specified in the Twelfth Schedule, every thing done, action taken obligation, liability, penalty or punishment incurred, inquiry or proceeding commenced, officer appointed or person authorised, jurisdiction or power conferred, licence, certificate or permit granted, rule made and order issued under any of the provisions of the said enactments shall, if not inconsistent with the provisions of this Ordinance, continue in force and, so far as may be, be deemed to have been respectively done, taken, incurred, commenced, appointed, authorised, conferred, granted, made or issued under this Ordinance." Sections 62 and 64 of the Act deal respectively with the subject of temporary permits and appeals, and correspond to sections 64 and 66 of the Ordinance. There have been some changes in the relevant provisions of the Ordinance which are very material for the purposes of instant case, and must be reproduced in extenso to appreciate the real difference, inasmuch as, for the validation and enforcibility of all acts done and actions taken under the Motor Vehicles Act, the essential condition is that they should not be inconsistent with the provisions of the successor Ordinance. Section 62 of the Act and section 64 of the Ordinance are reproduced below: (Section 62 of the Motor Vehicles Act, 1939) "62.‑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 occasion 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 64 of the Motor Vehicles Ordinance, 1965) "

64. Temporary permits.‑(1) A regional Transport Authority may, without following the procedure laid down in section 59, grant permits, to be effective for a limited period not exceeding four months, authorising 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 any particular temporary need, or (d) pending decision on an application for the grant of a permit, and may attach to any such permit any condition it thinks fit." (2)

" A comparison of the two would at once show that clause (d) of subsection (1) and subsection (2) of section 64 of the Ordinance is a new provision. The corresponding provision relating to appeals existing in section 64 of the Act and section 66 of the Ordinance are also reproduced below for facility of comparison and contract. (Section 64 of the Act) "

64. Any person‑ (a) aggrieved by the refusal of the Provincial or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or (b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or (c) aggrieved by the refusal to transfer the permit to the person succeeding on the death of the holder of a permit, or (d) aggrieved by the refusal of the Provincial or a Regional Transport Authority to countersign a permit or by any condition attached to such countersignature, or (e) aggrieved by the refusal of renewal of a permit, or (f) being a local authority or police authority or an association which, or a person providing transport 'facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto, or (g) being the holder of a licence, who is aggrieved by the refusal of a Regional Transport Authority to grant an authorisation to drive a public service vehicle, may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard." (Section 66 of the Ordinance) "66.‑(1) Any person‑ (a) aggrieved by the refusal of the Provincial or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or (b) aggrieved by the cancellation or suspension of the permit, or by any variation! of the conditions thereof, or (c) aggrieved by the refusal to transfer the permit to the person succeeding on the death of the holder of a permit to the possession of .the vehicle or vehicles covered by the permit, or (d) aggrieved by the refusal of the Provincial or a Regional Transport Authority to countersign a permit,, or by any condition attached to such countersignature, or (e) aggrieved by the refusal to renew a permit, or (f) being a local authority or police authority, or an association which, or a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition. attached thereto, or (g) being the holder of a licence, who is aggrieved by the refusal of a Regional Transport Authority to grant an authorisation to drive a public service vehicle, may within thirty days and in the prescribed manner, appeal to the prescribed authority, who after giving such person and the original authority an opportunity of being heard, pass such order, not inconsistent with the provisions of this Ordinance or the rules' framed there-under, as it may deem fit: Provided that the appellate authority shall not increase the number of permits granted by the Provincial Transport Authority or a Regional Transport Authority. (2) No appeal shall lie against any order passed under subsection (2) of section 45. (3) Save as expressly provided in this Ordinance, no Court or other authority shall have jurisdiction‑ (a) to entertain or adjudicate upon any matter which the Provincial or a Regional Transport Authority or the prescribed authority is empowered by this Ordinance to dispose of or to determine, or . (b) to question the legality of anything done under this Ordinance by or at the instance of the Provincial or a Regional Transport Authority or the prescribed authority. (4) No Court or other authority shall be competent to. grant an injunction or other order in relation to any proceedings before the Provincial or a Regional Transport Authority or the prescribed authority under this Ordinance, or anything done or intended to be done by or at the instance of any such authority under this Ordinance." A perusal of the two provisions reveals that besides the proviso to subsection (1) of section 66, three subsections Nos. (2), (3) and (4) ibid are new provisions in the Ordinance which did not find place in section 64 of the Act. Of these, the only portion relevant for the purposes of the instant case is subsection (2) of section 66 which provides that "no appeal shall lie against any order passed under subsection (2) of section 45".

9. It is also pertinent to point out that section 59 of the Ordinance dealing with the procedure for the grant of permits corresponds to section 57 of the Act and the two provisions are in fact identical. Similarly, section 50 of the Ordinance dealing with restrictions on the number of stage carriages and imposition of conditions on stage carriage permits corresponds to section 48 of the Act, and section 49 of the Ordinance dealing with the procedure for the consideration of the applications for stage carriage permits corresponds to section 47 of the Act. But besides the insertion of new clauses (g), (h), (i) and (j) to subsection (1) it has also added another subsection (3). These are new provisions which did not exist in the corresponding section 47 of the Act, but they are not material or relevant for the present purposes.

10. It may, however, be pointed out that it is for the first time that a provision regarding ‑ the requirement of a thorough survey of the road, traffic and transport service to be carried out in the manner prescribed by the Rule framed by the Government, was made in clause (a) of subsection (1) of section 50, which did not exist earlier in the corresponding section 48 of the Act: Another equally important point to be mentioned in this comparative study of the preceding and the succeeding statutes is the provision regarding the delegation of power and functions contained in subsection (3) of section 46 of the Ordinance corresponding to subsection (5) of section 44 of the Act. There is no difference between the two provisions except that section 69 referred to in this provision of the Ordinance relates to the corresponding section 68 of the Act which is mentioned in the relevant provision of the latter. In the absence of any material difference in the language only one of the provisions may be reproduced. Subsection (8) of section 46 of the Ordinance reads as follows: Subsection (8) of the Ordinance: "(8) The Provincial Transport Authority and any Regional Transport Authority, if authorised in this behalf by rules made under section 69, may delegate such of its powers and functions to such authority, or person and subject to such restrictions, limitations and conditions as may be prescribed by the said rules."

11. The last thing to be mentioned in regard to the comparative analysis of the two statutes is that while no rules appear to have yet been framed by the Government under section 69 of the Ordinance on the subject of delegation of powers such rules, however, were framed under section 68 of the Act and the relevant rule 4‑A (1) in this regard reads as follows: "4‑A. (1) The following powers and functions may be delegated by a Regional Transport Authority to a person in the manner specified below, namely:‑ (a) the power of grant of temporary permits under section 62 of the Act may be delegated to the Chairman and may also be delegated to the Secretary provided that the Secretary shall not exercise such powers unless the Chairman is away froth the headquarters of the Authority and a reference will involve an amount of delay which is in the circumstances unreasonable."

12. Having considered the relevant provisions of the two statutes we now proceed to take up the points raised by the learned counsel which shall involve the interpretation of the statutory provisions mentioned above. At the outset we would like to address ourselves to the technical objections raised by the learned counsel for respondent No. 1 on the competency of the Writ Petitions. While relying on Tariq Transport Co., Lahore v. Sargodha‑Bhera Bus Service (P L D 1958 S C (Pak.) 437), it was argued by Doctor Nasim Hasan Shah that there being no infringement of a vested right of the petitioner, the latter was not an aggrieved party within the meaning of Article 9S of the Constitution. We have no hesitation in saying that there is no substance in this contention. In the authority relied upon by the learned counsel for the respondent, their Lordships of the Supreme Court while taking exception to the Provincial Transport Authority having been impleaded as a respondent by the High Court made the following observations: "In a petition for a writ the first question that the Court has to consider is whether the petitioner has the locus standi to invoke the extraordinary jurisdiction of the Court, and it is a basic principle that a person seeking judicial review of administrative or quasi‑judicial action must show that he has a direct personal interest in the act which he challenges before his prayer for review is entertained. He does not have standing to sue unless he is interested in and affected adversely by the decision of which he seeks review. His interest must be of a personal and not of an official nature. An application for an order of certiorari can only be made by an aggrieved party and not merely by one of the public, and in the case of an applica tion for an order of mandamus it is an established rule that the applicant must show that there resides in himself a legal right to the performance of a legal duty by the party against whom the mandamus is sought." Muhammad Munir C. J., who delivered the judgment then reproduced the following quotation from Mr: Justice Frankfurt in Giant Anti‑Fascist Refugee Committee v. McGrath (341 U S 123,151): "A petitioner, does not have standing to sue unless he is interested in and affected adversely by the decision of which he seeks review. His interest must be of a personal and not of an official nature." Some more authorities were also quoted in support of the pro position that an application for an order of certiorari can only be made by an aggrieved party and not merely by one of the members of the public. We are, however, of the view that the petitioners being existing operators on the major part of the route in question their interests were affected by the grant of temporary permits to respondent No. 1, and as such they are an aggrieved party within the meaning of Article 98 (2) (a) of the Constitution, and have a locus standi to invoke the Writ jurisdiction of this Court under that Article.

13. Before proceeding to determine the main question regarding the competency of an appeal against an order of grant of temporary permits, we would like to dispose of one more preliminary point, and that is, the effect of the saving clause of section 122 of the Ordinance on the validity of the temporary permits granted to respondent No. 1, by the first impugned order. As stated earlier, since no rules have been framed so far under section (8) of section 46 of the Ordinance relating to delegation of powers by the Provincial and the Regional Transport Authority the rules framed under the repealed Act and the powers conferred under these shall continue to be in force in so far as they are not inconsistent with the provisions of the Ordinance. It was contended by Doctor Nasim Hasan Shah that rule 4‑A (1) reproduced earlier provided for the delegation of powers to the Chairman for the grant of temporary 'permits and in fact, such powers had been delegated to the Chairman, Regional Transport Authority, Multan, in exercise of which the latter had sanctioned the impugned permits. These powers being saved by section 122(2) of the Ordinance to the extent of their consistency with its provisions, the order passed by the Chairman was a perfectly legal order in spite of the fact that it had been passed after the promulgation of the Ordinance. On the contrary, it was argued that since no fresh rules had been framed under the Ordinance, and under subsection (2) of section 64, the delegation of powers in favour of the Chairman in respect of the grant of temporary permits was confined only to the category of cases falling under clause (d) of subsection (1) of that section and to none other, the intention of the law‑giver obviously was to exclude such delega tion in respect of cases mentioned in clauses (a), (b) and (c), and to this extent the statutory provisions being inconsistent with and derogatory to the provisions contained in rule 4 (a) (1), the former must prevail.

14. Having given our careful consideration to these arguments, we are of the view that by virtue of section 122 (2) of the Ordinance, the delegation of powers already conferred on the Chairman regarding grant of temporary permits still holds good, inasmuch as it is not inconsistent with the provisions of section 64 of the Ordinance. The general delegations as envisaged by rule 4‑A (1) covered all the three categories of cases mentioned in clauses (a), (b) and (c), and since clause (d) was included for the first time in the Ordinance, the delegation of the power to the Chairman in this regard was also provided for by means of an enabling provision in subsection (2) of the section. It is significant to note that the new subsection (2) is not enacted by way of a saving clause or a proviso, which should have the effect of excepting or detracting some thing from or qualifying the general provisions but is just in the form of an enabling provision which should be considered as supplementary, to the powers already conferred on the Chairman by virtue of rule 4‑A (1). It is a settled rule of interpretation of statutes that consistency between the earlier and the subsequent provision should be presumed, unless a contrary intention is expressed or is clearly, deducible by implication. The two provisions can easily stand together and in fact, are quite consistent and supplementary to each other one being confined to cases mentioned in clauses (a), (b) and (c) and the other extending it to clause (d), thus covering all categories of cases. There is, therefore, neither any redundancy or superfluity, nor any absurdity and the two provisions can be reasonably reconciled.

15. The matter could also be looked from another point of view. One important consideration underlying the principle of delegations of power is to provide an expeditious remedy for the disposal of cases of an urgent nature without loss of time. We are unable to see any special urgency in respect of cases mentioned in clause (d) as distinguished from those mentioned in clauses (a), (b) and (c), so as to show that the former cannot brook any delay and must be straightway disposed of by the Chairman before the authority convenes a formal meeting. We accordingly hold that it was a case of valid delegation of powers, irrespective of the fact that there were no pending applications before the R. T. A. for the grant of permits as contemplated by clause (d).

16. It may, however, be observed in this context that to hold in. favour of the Chairman's competency to grant temporary permits is not the same thing as to justify the order passed by him. The public requirement, if any, appears only to relate to affording transport facilities on the nine miles track from Mailsi to the Syphon, upon which at the seventh mile some construction was going on. To make this public necessity or convenience as a pretext for grant of permits for the entire route from Multan to Mailsi Syphon covering a distance of 62 miles where apparently a large number of transport services plied their buses on competitive basis would only be justified if it fell within the four corners of the eventualities mentioned in section 62 of the Act, as reproduced in section 64 of the Ordinance with the addition of part (d). Part (a) deals with conveyance of passengers on special occasions such as fairs: and religious gatherings; part (b) refers to purpose's of a seasonal business; part (c) relates to particular temporary requirements Part (d) added in section 64 of the Ordinance which is not applicable to the instant case for reasons stated earlier authorises the R. T. A. to grant temporary permits pending disposal of an application for a permit which power can be delegated to the Chairman under subsection (2) of section 64.

17. It could, however, be argued that in view of the observation of their Lordships of the Supreme Court in Tariq Transport Company v. Sargodha‑Bhera Bus Service (P L D 1958 S C (Pak.) 437) that the Chairman was "the sole judge of facts and of the necessity, expediency, advisability or reasonableness of the action to be taken. If the reply be in the affirmative, he was not acting judicially and his direction is not liable to judicial review." In that case their Lordships of the Supreme Court were pleased, to summarise their conclusions as follows; "The conclusion to be deduced from this discussion is that where an administrative or executive officer acts under a law, the High Court will control the action by an appropriate order if he; (a) goes out of the law, i.e. exercises a jurisdiction not vested in him by law; (b) Wrongly denies or omits to exercise a jurisdiction ; and (c) Where the law under which he acts prescribes the manner in which it is to act, materially departs from that law. But the over‑riding requirement in all the three cases is that the excess or denial of jurisdiction or the irregularity in the prescribed procedure should` have injuriously affected some justiciable right of a party." Their Lordships took the view that the Chairman or the Transport Authorities were functionaries "acting as administrative tribunals in whose case emphasis is on policy, expediency and discretion to enable them to achieve the subject for which they were set up, and that the approach in determining the relevant facts in their case would be often subjective and not objective", there being generally no lis before them. It would be pertinent to observe that this was the position obtaining under Article 170 of the 1956 Constitution in respect of writs of certiorari and mandamus. The position under Article 98 of the Constitution is, however, distinguishable. This question was examined in Shaukat Ali v. Commissioner, Lahore Division (P L D 1963 Lah. 127) and Mahboob Ali Malik v. Province of West Pakistan (P L D 1963 Lah. 575). The latter is a Full Bench authority comprising of Manzur Qadir, the Ex‑Chief Justice of this Court, Inam Ullah Khan, the present Chief Justice, Mr. Muhammad Yaqoob Ali Khan, now Judge of the Supreme Court, Waheed‑ud‑Din Ahmad and Muhammad Daud Khan, JJ. In the first mentioned authority, and order passed by the Commis sioner cancelling the licence of the petitioner for running a beef shop was called in question by a writ of certiorari. Precisely the same objection regarding the jurisdiction of the Court was taken by the learned counsel appearing for the state who contended that the order being an executive order, the Commis sioner was not performing any quasi‑judicial functions and that the petitioner had no legal right in the licence. The Division Bench consisting of our learned brothers J. Ortcheson and Sardar Muhammad Iqbal, JJ. after having considered this question took the view that Article 98 of the present Constitution made no distinction between administrative, judicial or quasi judicial orders, whereby "a very wide and new jurisdiction has been conferred on the High Court to remedy, all possible kinds of injustice, where there is no adequate remedy under the ordinary law. We find ourselves in respectful agreement with this proposition. In the Full Bench authority referred to earlier, their Lordships took the view that the scope of jurisdiction under Article 98 was enlarged in some cases and curtailed in other in comparison to the earlier writ jurisdiction. Reference was made by their Lordships to the "Law of Extraordinary Legal Remedies" by Fords, from which the following lines were reproduced : "There would be something in the nature of the act or pro ceeding that makes it apparent to the superior Court that it will not be able to protect the rights of the litigants or efford them adequate redress otherwise than through the exercise of the extraordinary jurisdiction." In fact the comparative scope of Writ jurisdiction in the earlier and the present statutes was not precisely before their Lordships, but the question under examination was the invocation of the Writ jurisdiction under Article 98 of the Constitution, particularly the scope of expression "No other adequate remedy'". Even in Jamal Shah's case (P L D 1966 S C 1), while discussing the scope of Articles 98 and 171 of the Constitution, the learned Chief Justice of Pakistan observed as follows: "Article 98 is a wholly new provision and confers a new jurisdiction. To regard it as a continuation of the powers conferred upon the Supreme Court and the High Courts by Article 2 (4) of the Laws (Continuance in Force) Order, 1958, to issue writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, is in my view an error." . . . . . . . . . . . . "Proceeding on that basis; it is plain that Article 171 requires, with respect to election disputes, that their determination should be in accordance with the law specially made for that purpose, and not determination, but final determination, that is to say, determination once for all. To emphasise and place beyond doubt that the jurisdiction thus being created was exclusive in an absolute sense, words were added to Article 171 which have already been quoted, and which produce the effect that no dispute arising out of an election shall be decided otherwise than under the law specially made for the purpose in accordance with the subsection, nor shall the validity of such an election be called in question except in accordance with the provisions of the aforesaid law, in this case the National and Provincial Assemblies (Election) Act of 1964. It must be remembered that a requirement of finality of determination contained in the Constitution is to be placed on a wholly different and certainly at a much higher level than provisions in sub‑constitutional statutes giving finality to the determination of Tribunals constituted thereunder. In the latter case, a High Court acting under Article 98 could indeed invoke its superior authority to impose upon such statutory Tribunal, despite the finality given to its determination, the requirement that its actions should be within its jurisdiction, that they could not be in defeat of that jurisdiction and that such action should be shown to have been performed with lawful authority. In the absence of a valid provision barring such interference, the High Court acting under Article 98 would, I conceive, have the authority to interpret the relevant statutes, in respect of the limitation upon jurisdiction, the obligations to exercise the jurisdiction, and the scope of the authority conferred by such statute." We are thus in no manner of doubt that an order passed by a Transport Authority or its Chairman under section 64 of the West Pakistan Motor Vehicles Ordinance of 1965, not covered by any of the four situations mentioned in parts (a), (b), (c) and (d) of subsection (1) of that section, corresponding except part (d) to parts (a), (b) and (c) of subsection (1) of section 62 of the Motor Vehicles Act, can be struck down in exercise of Writ jurisdiction as being without lawful authority. We would, however, like to make it clear that we may not be understood to question the finding of fact by the Chairman that a temporary requirement necessitating the grant of temporary permits did really exist, nor do we find fault with the discretion of that functionary to grant permits to the applicants of his choice. We need not, however, go into this question as the Writ Petition can even otherwise be disposed of without its determination.

18. We now come to the question of the competency of an appeal against an order for grant of temporary permits which in fact is the crux of the whole matter. It was strenuously argued before us by the learned counsel that although in the case of temporary permits there had been a departure from the normal procedure laid down for the making and consideration of application for grant of permits other than temporary permits, a temporary permit was essentially a permit within the meaning of section 2 (25) of the Ordinance defined "as a document issued by the Provincial Transport Authority or a Regional Transport Authority, authorising the use of a transport vehicle as a contract carriage or stage carriage, or authorising the owner as a private carrier or public carrier to use such vehicle". The term "temporary permit" was neither defined in the Act, nor has it now been defined in the Ordinance. In the entire scheme of these statutes, the expression "temporary permit" has been used twice, that is in section 64 of the Ordin ance, corresponding to section 62 of the Act, and earlier in section 60 of the Ordinance, corresponding to section 58 of the Act. The latter provision refers to the duration and renewal of permits and begins as follows: "60. (1) A permit other than a temporary permit issued under section 64 shall be effective without renewal for such period, not less than three years and not more than five years, as the Regional Transport Authority tray in its discretion specify in the permit. (2) . . . . . . . . . . . Following would be in our view the characteristics and distinguish ing features of the two types of permits: (i) Temporary permits are granted for a temporary period not exceeding four months, whereas the normal life of another permit could be between 3 to 5 years. (ii) Unlike, a regular permit, a temporary permit is granted to offer facilities of transport on special occasions for seasonal business, for a temporary need or pending decision of an application for the grant of a regular permit. (iii) The Regional Transport Authority, or for that matter, its delegate may attach any condition to a temporary permit as it thinks fit. This equally applies to other permits. (iv) The normal procedure laid pown for applying for a permit on or before a particular date, the publication of the application notifying objections before a certain date, the con sideration of the application along with the objections or representation if any at a public hearing after giving an oppor tunity to the objector of being heard, is dispensed with in case of a temporary permit." The question would arise that if once the procedure laid down in section 59 is dispensed with in case of temporary permits, whether the normal procedure laid down in sections 48, 49 and 50 would also by implication be excluded from operation. The learned counsel for the petitioners emphasised that this procedure shall remain applicable to cases of temporary permits and the only exclusion was in regard to the procedure laid down in section

59. On the contrary, the learned counsel for respondent No. 1, argued with equal emphasis that the entire procedure contained in the aforesaid sections was impliedly excluded and the provisions regarding the temporary permits was made quite independently of them, dealing with special circumstances of the nature of temporary requirements, and as such the provision regarding appeals was no longer applicable to them. It was further argued that even the application forms prescribed under the rule for a temporary permit was quite different. The argument was that under section 66 only persons mentioned in categories (a) to (g) of subsection (1) of section 66 were given the right to file an appeal and the petitioner could only fall in category (f) being the existing operators on the route their right to file an appeal was conditional and dependent upon having filed an objection to the grant of a permit which admittedly the petitioners have not done in the instant case. It was argued that since the procedure regarding the filing of objections and making of representation against the grant of a permit applied for had been impliedly dispensed with in respect of temporary permits, and since there was no specific provision on the point, the only inference that could be drawn was that such an order of grant of temporary permits was not appealable. It was next argued that the right of appeal not being inherent and being a creature of the statute has to be specifically conferred and is not to be impliedly presumed. As against this, the learned counsel for the petitioner, placing reliance on A I R 1959 Pat. 111, argued that the right of appeal did exist even against an order in respect of the grant of temporary permits. It was next contended that in case the existence of the right of appeal was doubtful, a beneficial construction in favour of the existence of such a right should be preferred. Reliance was placed in this regard on A I R 1950 Assam 22.

19. Having given our anxious consideration to the arguments advanced by both sides, we are not inclined to agree with the proposition put forward by the learned counsel for the respondent, and are of the view that a right of appeal does exist in the scheme of the statutes even against the grant of a temporary permit under section 64 of the Ordinance. No doubt, the provision relates to special circumstances and appears to be quite independent of the foregoing provisions dispensing at the same time with the procedure laid down for permits other than temporary, but the exemption relates only to the procedure laid down in section 59, and to none other. In the absence of any inconsistency or absurdity it would be wrong to infer the non -applicability of other procedural provisions. It is pertinent to refer at this stage to the previous order passed by respondent No. 3 in an appeal preferred by the petitioners against the grant of temporary permits to Messrs Mailsi Phon Transport Company. The appeal was not only entertained but was also accepted on 19th August 1964, and yet the same Member Board of Revenue in a subsequent order, taking an absolutely contrary view held the petitioner's appeal to be incompetent, in view of the objection taken before him presumably for the first time. It is not disputed that the existence of such a right has not only been consistently, presumed in the past, but such a right has also been recognized and in appropriate cases redress had been granted. In our opinion there is no apparent variation or amendment in the law on the point. The provision for appeal contained in the scheme and arrangement of sections is 'subsequent in point of order Section 66 of the Ordinance deals with appeals and begins as follows:- "66. (1)‑Any person‑ (a) aggrieved by the refusal of the Provincial or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him or . . ." It may be pointed out that in the absence of the definition of expression "temporary permit" which is essentially a kind of permit, the definition of "permit" is equally applicable to the former wherever it occurs in the scheme of statutes. If the view put forth by the learned counsel for the respondent were accepted, it will lead to the inevitable conclusion of the total immunity of the holders of temporary permits from the supervision and control of the authorities as provided in sections 49 to

62. Section 49 lays down the considerations to be kept in view in the grant of applications for stage carriage permits; section 50 empowers the authorities to impose conditions to restrict the number of stage carriages and impose conditions on their permits. Section 61 provides for the non‑transferability of the permits, replacement of a vehicle, restrictions on speed and maximum fares and freights, and finally section 62 empowers the authority to cancel or suspend a permit. We have no hesitation in saying that such consequences were neither intended nor desired by the Legislature. Nor in our opinion are they deducible from the relevant provisions of the Ordinance. A contrary view would evidently lead to an absurd position placing the holder of a temporary permit absolutely beyond the reach of law granting him complete immunity. Even the provisions in section 65 relating to the validation of permits extending from one region to the other would in our opinion be equally applicable to temporary permits, in case the route falls partly within the jurisdiction of one Regional Transport Authority and partly within the other.

20. It is not disputed that the right 'of appeal is not a natural or inherent right attaching to litigation and cannot beg assumed unless expressly given by statutes or by rules having the force of statutes. Such a right has been admittedly conferred by section 66 of the Ordinance in which the word "permit" has been used in a genuine sense covering all kinds of permits, temporary or otherwise, private carrier permits, public carrier permits, IV contract carriage permits, or stage carrier permits. The only exception relates to an order passed in subsection (2) of section 45 as provided in subsection (2) of section 66 of the provisions can neither be restricted nor enlarged. If it had been the intention of the law giver to exempt from the operation of section 66 orders relating to the grant of temporary permits made under section 64, there was nothing to prevent it from saying so, as this was the only proper context to make such a provision. No curtailment of such a right can be inferred by implication and must necessarily be provided for specifically in no unmistakable terms, failing which the general and unexceptional provisions must be presumed. In fact this would follow as a necessary corollary from the principle that a right of appeal has to be specifically provided for. On the same principle the exception has also to be expressly mentioned and not to be impliedly presumed.

21. It could be argued that the provision relating to the grant of temporary permits was incorporated with a view to meet special situations and the applicability of the procedure laid down in sections 48, 49, 50 and 66 resulting in an invitable delay would defeat the very object of the provisions. This does not appear to us to be the correct position as normally under the existing law, applications are invariably made even for the grant of temporary permits. There may be situations demanding conveyance of passengers for "special occasions" or for "purposes of seasonal business" which are by and large known before time or at least are not unforseeable and can easily be met with by having recourse to a normal procedure. But a "particular temporary need" as envisaged by part (c) of subsection (1) of section 64 might suddenly arise in an unforeseen manner. To meet such an eventuality, provisions of section 59 could be dispensed with. To meet sudden and grave cases of emergency like the recent national emergency with which the country was faced, necessitating mass evacuation of civil population, more effective alternative measures have been provided for in the Constitution. In fact, besides a temporary financial gain that accrues to a holder of a temporary permit such permits are usually made preclude to and a pretext for the grant of permanent permits and are allowed to mature as such in due course of time. It is here that the shoe really pinches.

22. Once it is held that the order is appealable then the argument that only an existing operator who had objected to the grant of permit could alone file an appeal, has no force, inasmuch as to grant a temporary permit in a cryptic and clandestine manner and then turn round to say that no objection has been filed would be an indefensible position putting a premium on promiscuity Wand arbitrariness which cannot be allowed to frustrate a statutory provision. Since the petitioners were never afforded an opportunity to file objections and in fact had no occasion to do so, this inevitable omission cannot be allowed to stand in their way as a pretext for the non‑entertainment of appeal. A reference may be made with some advantage to A I R 1959 Patna

111. It was held by the learned Judges that since recourse to section 57 of the Motor Vehicles Act correspond ing to section 59 of the Ordinance had been dispensed with, there was no occasion for the petitioners to file an objection, and as such, this was not a good ground ‑for the non‑maintainability of an appeal. The position is precisely identical in the instant case, the relevant provision being also practically the same. The second argument would be that the petitioners' right of appeal would not be affected for not raising an objection to the grant of temporary permits in .favour of the respondents because the relevant provisions dealing with the procedure of making representation and raising objection had been dispensed with. This, however, shall not have the effect of taking away the right of appeal, but would confer the same in spite of the non -fulfilment of that condition, which has been expressly waived.

23. The matter could also be considered from another point of view. It is provided in section 64 dealing with the grant of temporary permits that "the R. T. A. may without follow ing the procedure laid down in section 59 grant permits . . . . ." The use of word `may' makes it obviously permissive being no in the nature of a mandatory provision, and as such a position t could be visualised where even in regard to temporary permits; the R. T. A. chooses to follow the normal procedure laid down in section

59. It was frankly conceded by the learned counsel for the respondent that in such event, if an objection is raised by an existing operator, an appeal would lie under section 66 (1) (f). This would have the inevitable effect of clothing the R. T. A. with an unrestricted discretionary power to have recourse to or dispense with the provisions of section 59 in the grant of temporary permits without laying down any guiding principles to be followed in this regard. In other words this would invest the authority with arbitrary powers which could be used with discrimination. We are inclined to think that it could not have been the intention of the Legislature to perpetuate such possible discriminatory and arbitrary orders without providing the remedy of appeal. This also lends support to the view that an order granting temporary permits would be appealable, even if no objection has been raised as an inevitable consequence of a self‑created situation by the R. T. A.

24. We are also inclined to agree with the learned counsel for the petitioners that on the analogy of the Full Bench Authority in Muhammad Amin v. Shaikh Jamshed (P L D 1963 Lah. 523) the right of appeal could also be inferred under part (f) of subsection (1) of section 66 of the Ordinance, notwithstanding the fact that the petitioners could not have an opportunity to oppose the grant of a temporary permit in their capacity as existing operaters and persons "providing transport facility." In the aforesaid authority their Lordships took the view that the generality of the words "any party aggrieved by an order of the Controller may prefer an appeal" used in section 15 (1) (b) of the West Pakistan Urban Rent Restriction Ordinance, could not be cut down or arbitrarily restricted to make the word "order" applicable to some orders and not to others. A similar view was taken in A I R 1959 Raj. 119 where an oral objection was taken by a party aggrieved by the grant of temporary permits at the time of the considera tion. The objection was held to be untenable on the ground that the normal procedure had been dispensed with in regard to temporary permits.

25. Lastly, assuming that the right of appeal is not so apparently visible and the existence of such a right is not free from doubt, we are inclined to agree with the view taken in A I R 1950 Assam 22, and would hold that such a right does exist. The learned Judges placing reliance on Salim‑ud‑Din Ahmad v. Rahim Shaikh (A I R 1926 Cal. 1113) held "that where the existence of a right is in doubt, the benefit ought to go to the appellant." In the latter, authority their Lordships observed as follows: "In a matter which relates to the curtailment of the right of appeal, if there is the slightest doubt to one's mind, the benefit of doubt should go to the party who seeks appeal."

26. The upshot of the foregoing discussion is that in our view an appeal does lie against an order relating to the grant of temporary permits, and as such, the learned Member, Board of Revenue had erred in law by holding otherwise and consequently refusing to exercise jurisdiction which lawfully vested in him. The result is that the order is declared without lawful authority and of no legal effect.

27. In so far as Writ Petitions Nos. 1671, 1674, 1675, 1682 and 1685 of 1965 are concerned, once the delegation of powers in favour of the Chairman is conceded, there is nothing left to find fault with his orders granting permits. The only point, however, which justifies the interference of this Court in these cases is the view taken by the learned Member, Board of Revenue regarding the incompetence of an appeal against an order of grant of temporary permits. Since we are of the opinion that an appeal does lie, the impugned order passed in each case by the Member, Board of Revenue would thus amount to failure of exercise of jurisdic tion lawfully vesting him, and would consequently render the impugned orders of no legal effect. We declare accordingly. As a result we allow all the Writ Petitions and remand the cases to the Member, Board of Revenue for fresh decision according to law. The parties are, however, left to bear their own costs. K. B. A. Petitions accepted.