1984Q16 (PLP)

MUFTAKHIRUDDIN, J.‑The petitioner has called in question the orders of the Member, Board of Revenue and the Chairman Provincial Transport Authority, Baluchistan, Quetta, dated 30th March, 1983 whereby the appeal filed by the petitioner has been referred to the Commisioner and the Chair man; Regional Transport Authority, Quetta. The petition arises in the following. circumstances:

2. The petitioner was granted two route permits for plying his buses on Quetta Taftan Route and was granted a time‑table in 17th April, 1976 and 17tn November, 1975 by the Secretary Regional Transport Authority, Quetta, according to which the buses of the petitioner were to leave from Quetta according to the following time‑table :‑ Name of Company Departure from Quetta Departure from Taftan Aziz Transport. Friday 8‑15 a. m. Sunday 7‑45 a. m. Aziz Transport. Monday 8‑15 a. m. Wednesday 9‑00 a.m. The route permits were got renewed from time to time and the last renewal is upto 19‑12‑1983. In June, 1981 on account of certain com plaints made against the petitioner that he did not abide by the time‑table and was violating the hours and creating problems, the Secretary Regional Transport Authority (respondent No. l) cancelled the route permits of the petitioner on 11 ‑ 6‑1981. An appeal was filed by the petitioner be fore the Chairman, Provincial Transport Authority Baluchistan who vide order dated 17‑8‑19&1 (Annexure "C" to the petition) set aside the order of the Secretary Regional Transport Authority and remanded the case to the Chairman, Regional Transport authority (respondent No. 2) for "taking a fresh decision according to law". It was observed in this order of the respondent No. 3 that‑ "(i) on the perusal of the record it transpired that the abovesaid extract of the order was not in conformity with the record avail able in the office of the Secretary, Regional Transport Authority, Quetta; (ii) the contradiction ,between the time‑table issued on various occasions appears itself to be the main cause of dispute/restiveness for the appellant. In such a state of affairs there are bound to be complications; (iii) from the discrepancies as available in the record of the Secretary Regional Transport Authority, Quetta, one is likely to conclude that the action with regard to the time‑table is being taken in that Office without proper scrutiny while they are being implemented; (iv) under these circumstances the impugned order by itself is a violation of the time‑table issued." The petitioner did not receive any response from the respondent No, 2 as no order was passed by him for considerably long time. The petitioner in the circumstances in which he was placed on account of in‑action of the respondent No. 2, approached the respondent No. 3 and this time again on 30‑3‑1983 the matter was referred to the respondent No. 2 and the petitioner was directed to appear before the Commissioner on 1‑4‑1983. Against this order this Constitutional Petition No. 115 of 1983 was filed in this Court. And has prayed that :‑ "It is, therefore, prayed that declaration be made to the effect :‑ (i) That the petitioner being an old transporter is entitled to his time table allotted to him on 17‑4‑1976 and any change in the said time table by respondent No. 1 is without jurisdiction and lawful authority and is of no legal effect. (ii) That it be further held that the orders of remand passed by respon dent No. 3 on 30‑3‑1983 were also contrary to law and it be held that respondent No. 3 has failed to exercise jurisdiction vested in him under law. The orders of remand be declared as arbitrary, contrary to the provisions of law and being mala fide be set aside as such. (iii) It be further held that the respondent No. 2 has do lawful authority to decide the appeal filed against the order and action of respon dent No. 1, therefore, the order of remand by respondent No. 3 directing the respondent No. 2 to dispose of the said appeal is illegal, arbitrary, contrary to the provisions of law and is totally void. It may also be declared that the petitioner on the basis of policy of first come first serve is entitled to the time‑table issued to him on 17‑0‑1976, and necessary direction be given to respondents to implement the said time‑table and permit the petitioner to ply his bus in accordance with the said time‑table in the interest of justice, fair play and equity." 3‑A. Later, on an application made on behalf of Haji Juma Khan, Haji Muhammad Ibrahim, Abdul Majid and Haji Amir Muhammad the respondents Nos. 4 to 7 they were allowed to contest the petition as respon dents and amended petition has been filed.

4. The Regional Transport Authority decided not to contest the peti tion but has however, furnished the parawise comments. The Chairman Regional Transport Authority, Quetta and the Chairman Provincial Tran sport Authority, Baluchistan did not offer any comments even but the learned Advocate‑General appeared on their behalf. The respondents Nos. 4 to 7 filed counter‑affidavits in reply wherein preliminary objection to the filing of the petition was made and it was pleaded that the petitioner has not objected to the reference of the case to the Chairman Regional Transport Authority by the respondent No. 3 and his appearance before the respondent No. 2 operates as estoppel and on account of his acquie scence be is not entitled to the relief. It has also urged that since the matter is pending before the respondent No. .2, the petitioner after the disposal of the case by the respondent No. 2 can avail the remedy by filing an appeal.

5. The learned counsel for the unofficial contesting respondents has submitted before us that since the petitioner had not objected to the jurisdiction of Chairman Regional Transport Authority he is precluded from raising this objection in this petition before us, and in this connection emphasized that the direction and writ prayed for is not a matter of right but one of the discretion largely and while issuing it, the conduct of the party applying for should not be such as to disentitle him of that relief. We are mindful of the pronouncement of the Supreme Court in Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner (Pakistan), Lahore PLD1964SC829 in that direction. But the facts of the present case are different as such the principle laid down in Ghulam Mohiuddin's case cannot be applied for. In the case of Ghulam Mohiuddin the writ petitioner had filed a review application and also a revision, and when the review Court decided againt Lim, he took up the position that as no review lay against which a revision had been filed, therefore, the review order was without juris diction. The defect in jurisdiction thus had cropped up due to the conduct of the writ petitioner, who had filed a revision petition himself. He was aware of that action and conduct of his but did not bring it to the notice of the Court concerned and when ultimately, the decision went against him, he came out with an information that as he had filed a revision, the review Court had no jurisdiction. It is this conduct of the writ petitioner in the case of Ghulam Mohiuddin, which was taken exception to by the Supreme Court, in view whereof, their Lordships of the Supreme Court, refused to issue the writ at the instance of such a petitioner on that ground. But in the instant case the petitioner was only a passive spectator before the Chairman, Regional Transport Authority whom the appeal was referred to by the Chairman, Provincial Transport Authority not at the suggestion of the petitioner nor any objection by the petitioner could be heeded to as it was an administrative tribunal. We can do no be,ter than to quote a very illuminating observation quoted with approval by the Supreme Court in Muhammad Tufail's case (1). While allowing objection of juris diction for the first time in writ proceedings. At page 209 of the report is said "Halsbury's Laws of England, Second Edition, Volume 1X, para. 1397 defines the cases where a writ of prohibition may issue. It says `Prohibition lies not only for excess of or absence of jurisdiction, but also for the contravention of some statute or the principles of the common law'. In Farquharson v. Morgan (1894) 1 Q B 552 it was held that "where total absence of jurisdiction appears on the face of the proceedings, in an inferior Court, the Court is bound to issue a prohibition, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior Court. The reason why, notwithstanding such acquiescence, a . prohibition is granted where the want of jurisdiction is apparent on the face of the proceed ings, is explained by Lord Denman in Bodenham v. Ricketts (6 M & M 170) to be for the sake of the public, lest `the case might become a precedent if allowed to stand without impeachment', and to this dictum Lord Lopes, L. J. added "because it is a want of jurisdiction of which the Court is informed by the proceedings before it, and which the Judge should have obser ved, and of which he himself should have taken notice." Besides the rule of disallowing objections of jur isdiction to be raised for the first time in writ proceedings is not an absolute rule. There are well known exceptions to that rule and the exceptions are recognized and ap proved by the Supreme Court as for example where the defect was apparent on the face of the record, where this rule is not applied. Another example of cases may be those where the tribunal concerned is a sort of administrative tribunal which is bound to obey instructions of its superiors. If any authority is needed, Judgment of the High Court in Akhtar Ali Pervaiz v. Altaf‑ur Rehman (P L D 1963 Lah. 390) may be referred. It is well‑settled propostion of law by now that there is no estoppel against the statute and if the action is wholly against the purview of law it cannot to be sustained. We are, therefore, of the view that mere omission to raise objection or merely remaining a passive spectator having no power to prevent the illegalities is no bar so as to disentitle a person from taking up the point of lack of jurisdiction on the part of a domestic tribunal. The defect of the jurisdiction in respondent No. 2, as we will show in this judgment later, had not arisen due to any action or move of the petitioner him self but the law does not permit that the appeal against the orders of the Secretary, Regional Transport Authority be heard and disposed of by the Chairman Regional Transport Authority.

6. Before dealing with the contentions of the learned counsel for the petitioner it would be useful to refer to the relevant provisions of Motor Vehicles Ordinance, 1965. Section 66 of the Ordinance deals with the subject of appeal and Rule 96 framed under the abovesaid Ordinance prescribes the authorities designated as appellate authority. Section 66 of the Ordinance and Rule 96 are reproduced below :‑‑‑ "Section

66. Appeals.‑(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 per mit, 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 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 to 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 in the prescribed manner, appeal to the prescribed authority, who after giving such and the original authority an opportunity of being heard, pass such order, not inconsistent with the provisions of this Ordinance or the rules framed thereunder, 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 an 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 entartain or adjudicate upon any matter which the Provincial or Regional Transport Authority or the prescribed authority is em powered 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 injunc tion or other order in relation to any proceedings before the Provincial or a Regional Transport Authority or the prescribed Au thority under this Ordinance, or anything dote or intended to be done by or at the instance of any such authority under this Ordinance. Rule

96. Appeal against the orders of Provincial Transport Authority.‑ The Authority (hereinafter referred to as the Appellate Authority) to hear and decide an appeal against the orders of Regional Trans port Authority and Claims Tribunal contemplated by clauses (a) (b), (c), (d). (e) (f) and (g) of section 66 and section 67‑E shall be the Chairman, Provincial Transport Authority, West Pakistan.

7. From the perusal of the Rule 96 it would be clear that the' Chair man Provincial Transport Authority was to decide the appeal himself and there is no power in him provided in the Ordinance or Rules framed there under which can authorise the Chairman, Provincial Transport Authority to delegate his powers to decide appeal to the Regional Transport ‑Au thority. The respondent No. 2, therefore, cannot acquire any jurisdiction, nor the Chairman Provincial Transport Authority can confer any juris diction on him. It has been rightly contended by the learned counsel for the petitioner that the Chairman Regional Transport Authority, had no lawful authority to sit as an appellate authority against the order of the Secretary, Regional Transport Authority. It has been held in a Division' Bench Judgment of the Lahore High Court in Ishar Singh v. Dhanpal Rai and another (A I R 1929 Lab. 534) that a remand order cannot confer on the subordinate Court a jurisdiction which that Court would not have had but for the remand it would be highly anomalous to hold that a Court not having jurisdiction in the ordinary course becomes competent in consequence of remand by a superior Court. This principle can be safely applied to the present case. We are, therefore, clear to our minds that the reference/remand of the appeal by the respondent No 3 to respondent No. 2 is without juris diction as the respondent No. 3 is not empowered under the Ordi nance or the Rules made thereunder to delegate/abdicate his powers in favour of Chairman Regional Transport Authority and the ‑Chairman Provincial Transport Authority is required under law to decide the appeal himself and he is under a legal obligation to do so. The authority to dele gate by the Chairman Provincial Transport Authority is not apparently, visible. There is another aspect of the case. The appellate jurisdiction is ex facie a judical power and the exercise of this power is in the nature of judicial function as the consequence of the decision seriously. affects the individual civil rights. The judicial powers is not delegateable unless the Legislature expressly authorises the repository of the power to do so. It is so because judicial power is reposed in a Court or authority which carries the confidence of the people that it is going to be exercised judicially, impartially and independently. Therefore, it is a fair expectation that the Court or authority shall not delegate or abdicate that power to some body else, and the function should be required to be performed with sense of responsibility and judicially. It has, therefore, become axiomatic that judicial power/ authority is not delegateable except by express provision to the contrary and the correctness of this proposition must be assumed. We have been at pains to read the order of the learned Chairman, Provincial Transport Authority and could not find any reason nor any reason is assigned by him as to why he did not choose to decide the matter himself, though the matter came before him twice during this period of about three years. There is a limit to the patience a petitioner must exercise and the occasion in the present case before the appellate authority (Chairman Provincial Transport Authority) was one which required that justice should be done and further that it should also be seen to be done. Here it i complained by the petitioner's counsel that by this act of omission and com mission the petitioner is being deprived of the source of livelihood and indefinite waiting has been imposed to gain redress in regard to a matter which is the main source of livelihood of the petitioner. The ground is thus laid for the issue of a direction to that authority to comply with its) duty in the relevant respect declaring the order already made to be void for non‑conformity with the law. The procedure adopted in this is, to say the least, unfair and unreasonable. There is an initial want of juris diction in respondent No. 3 to refer the appeal to the respondent No. 2 and refusal to exercise the jurisdiction by respondent No. 3 and has con sequently rendered the same to be of no legal effect. In Jamal Shah's case (PLD1966SC1) it has been laid down that the High Court acting under Article 98 can indeed invoke its supervisory authority upon such statutory tribunals, the requirement that its jurisdiction and that such action shown to have performed with lawful authority. The Chairman Provincial Transport Authority in refusing to act independently has certainly refused to exercise jurisdiction and has completely closed its mind in the exercise of jurisdiction of its own as required by law and in this case a material departure from the procedure which has adversely affected the right of the petitioner has rendered it to judicial review in its supervisory jurisdiction. In the present case the error is apparent on the face of the record and we feel no hesitation J in declaring that the order,, dated 30‑3‑1983 passed by the respondent No. 3 is without lawful authority and of no legal consequence against the peti tioner and is accordingly set aside. We accordingly allow this petition and declare the order dated 30‑3‑1983 passed by Chairman Provincial Trans port Authority, as without lawful authority, and of no legal effect and direct him that he shall decide the appeal of the petitioner himself. We expect that the Chairman Provincial Transport Authority shall do all that is necessary to ensure an expeditious disposal of the case. The parties shall however, bear their own costs. M. Z. ht. Petition accepted.