P L D 1957 (W (PLP)

CONSTANTINE, J.

These are three petitions on behalf of bus owners which have been heard together. For several years temporary permits have been issued by the Transport Authority of Karachi under section 62 of the Motor Vehicles Act. On the 23rd November 1956 the Chairman of the Provincial Transport Authority certified that when the Karachi Transport Syndicate Limited is registered, permits on long term basis for plying buses and other vehicles within the area of Karachi Administration will be granted to them. At a press conference reported in "Dawn" the Chief Com missioner stated that from 1st January 1957, the buses of the proposed Syndicate would be on the road and an advertisement in "Dawn" was published by the Syndicate. The opera tors therefore feared that applications by existing bus owners would not be treated on their merits, in view of the expressed intention of the respondents to favour the Syndicate. The applicants also contended that the issue of temporary permits was fraud upon the Act, since temporary permits could be granted only under section 62, and, therefore, only to meet a particular temporary need ; since these temporary permits have been issued for many years, and in respect of the whole of Karachi, the need was obviously neither temporary nor particular. Furthermore, section 58, they said, required the Transport Authority to issue a permit other than a tempo rary permit for not less than three years. The petitioners also contended that the Transport Autho rity intended to revise and reorganise the present scheme of routes and contended that this was beyond the power of the authority. Also it was stated that unless the Authority pre viously published its revised scheme of routes, the existing operators would be handicapped in applying for permits. They prayed, therefore, that the existing temporary permits should be directed to be treated as permanent permits valid for three years; that the decision of the Authority to grant stage carriage permits to the Syndicate should be quashed ; that the Authority should be restrained from re-allotment or re organization of the existing routes ; that the Authority should be restrained from considering the application of the Syndicate for the grant of stage carriage permits on the ground of expressed bias and predetermination ; that the Authority should invite applications from interested parties before mak ing a grant on any route not previously specified; that the Authority should not grant any permit to the Syndicate on an exclusive or monopoly basis ; that the Authority should give proper opportunity to the 'petitioners to oppose the applica tion for grant of a permit, and any other appropriate relief. Lengthy arguments had already taken place, before Mr. Manzar-e-Alam for the Syndicate, which was made a party only in application No. 75 of 1957, threw a minor bombshell, by drawing attention to the correct law. Neither the appli cants nor the Provincial Transport Authority and the other respondents, on whose behalf Mr. Valiani appeared, had realis ed that the Motor Vehicles Act of 1939 had been amended in its application to the Province of Sind by Sind Act XIV of 1948 which, after receiving the assent of the Governor-General, came into operation on the 77th March 1948, a date when Karachi still formed part of the Province of Sind. These amendments, therefore, apply to Karachi at present, and materially affected the case of the petitioners. The provision in section 58 that an application for renewal of a permit should be given preference over, new applications was deleted by section 12 of the amending Act. The provision in section 58, whereby the period of a permit should at least three years was affected by the addition of subsection (3) to section 58 as follows :- "Notwithstanding anything contained in subsection (1) above, the Provincial Government may order a Regional Transport Authority or the Provincial Transport Authority,' to limit the period in which any permit or class of permits is issued to any period less than the minimum prescribed in the Act". The new section 48 (a) has also some bearing on the appli cation :- "Notwithstanding anything contained in sections 47 and 48, Regional Transport Authority or Provincial Transport Autho rity shall issue a stage carriage permit applied for by, or on behalf of, the Provincial Government or by a company in which the Provincial Government is a shareholder, with the concurrence of the Provincial Government". A new clause was added to section 62. "(d) pending decision on an application for the grant or renewal of a permit". In 1951 the Under-Secretary to the Government of Pakistan addressed a letter to the Administrator of Karachi, which is at Exh. A. 3 attached to the Writ Petition No. 75. ' It directed that "stage carriage permits may be granted to operators of passenger transport services who had applied for permits to the Provincial Transport Authority prior to the imposition of restrictions contained in this Ministry's D. O. letter No. TP-2 (5)/50, dated 18th April 1951 on a purely temporary basis" and that "the permits so granted should be purely temporary valid for a period of three months, renew able for a further period of three months". The letter request ed that necessary instructions should be issued to the Provin cial Transport Authority to deal with applications for permits in the light of these revised orders. The condition at "(v)" that Government would not be bound to acquire the assets or give compensation to operators who are given permits after the passing of the Motor Vehicles (Amendment) Act, 1951 should be specifically mentioned in the temporary permits. The Provincial Transport Authority treated this letter, which we presume was transmitted to it by the Administrator, as re quiring that temporary permits only should be granted. It is, however, also to be regarded as a direction that permits whether permanent or temporary should not be issued for a period exceeding three months. Admittedly in all these cases the bus owners have been granted only temporary permits. There is one exception in Writ Petition No. 75 of 1957, but that permanent permit has now expired. The authority of Moti Lall and others v. The Government of Uttar Pradesh and others (A I R 1951 All, 257), Full Bench, to the effect that a' temporary permit though invalidly granted cannot be ordered by the Court to be treated as a permanent permit, appears to us correct. We think it is distinguishable from West Punjab Government v. P. J. V. Transport Ltd., (P L D1953 Lah, 339), where a permit had been issued for one year and it was held that this should be regarded as valid for three years, for in this latter case the Authority had issued a permanent permit, whereas in the Allahabad case, as in this case, the Authority had not issued a permanent permit. On a second point too the petitioners must fail, since we regard the letter to the Administrator, Exh. A. 3 as a direction to the Transport Authority not to issue any permits, whether temporary or permanent, for more than three month. If then the invalid temporary permits are to be treated as permanent permits, yet their period has already expired, and it would be useless for this Court to direct that those temporary permits should be regarded as permanent permits. The next point that requires consideration is the claim that the Transport Authority has no power to re-organise the system of routes existing in Karachi. There is no section of the Motor Vehicles Act which) deals specifically with the organisation of any system or scheme of routes. The relevant sections are 46, 47 and 48, which read as follows: "

46. An application for a permit to use a motor vehicles as a stage carriage (in this chapter referred to as a stage carriage permit) shall contain the following particulars, namely (a) the type and seating capacity of the vehicle in respect of which the application is made; (b) the route or routes on which or the area within which it is intended to use the vehicle ; (c) the time table, if any, of the service to be provided ; and (d) such other matters as may be prescribed". "47. (1) A Regional Transport Authority shall in decid ing whether to grant or refuse a stage carriage permit, have regard to the following matters, namely- (a) the interest of public generally ; (b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken; (c) the adequacy of existing road passenger transport services between the places to be served, the fares charged by those services and the effect upon those services of the service proposed ; (d) the benefit to any particular locality or localities likely to be afforded by the service ; (e) the operation by the applicant of other transport services and in particular of unremunerative services in con junction with remunerative services; and (f) the condition of the roads included in the proposed route or routes ; and shall also take into consideration any representations made by persons already providing road transport facilities along or near the proposed route or routes or by any local authority or police authority within whose jurisdiction any part of proposed, route or routes lies or by any association interested in the provision of road transport facilities. (2) A Regional Transport Authority shall refuse to grant a stage carriage permit if it appears from any time table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened. Provided that before such refusal an opportunity shall be given to the applicant 'to amend the time table so as to conform to the said provisions". "

48. A Regional Transport Authority may, after consi deration of the matters set forth in subsection (1) of section 47, (a) limit the number of stage carriages or stage carriages of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region ; (b) issue a stage carriage permit in respect of a particular stage carriage or a particular service of stage, carriages ; (c) regulate timings of arrival or departure of stage carriages whether they belong to a single or more owners ; or (d) attach to a stage carriage permit any prescribed condi tion or any one or more of the following conditions, namely :- (i) that the service specified in the permit shall be com menced not later than a specified date, and shall be continued for a specified period ; (ii) that the service may be varied only in accordance with specified conditions; (iia) that the stage carriage or stage carriages shall be used only on specified routes or in a specified area. (iii) that copies of fare table and time table shall be exhibited on the stage carriage and that the fare table and time table so exhibited shall be observed ; (iv) that not more than a specified number of passengers and not more than a specified amount of luggage shall be carried on any specified vehicle at any one time, (v) that within municipal limits and in such other areas and places as may be prescribed passengers shall not be taken up or set down at or except at specified points ; or (vi) that tickets shall be issued to passengers for the fares paid." There is nothing in the Act which prevents the Transport Authority from devising a scheme of routes and from amending such scheme of routes from time to time. The Authority is charged with the duty of having regard to the interest of the public generally and the benefit to any particular locality or localities likely to be afforded by the service and condition of the routes included in the proposed route or routes, and it is, in our opinion, obviously to the benefit of the public, as is done in most big cities, that a route should be fixed and numbered, so that the public may know where to catch and identify bus, if it wants to go to any particular place. This, however, is subject to the qualification that the Transport Authority must not regard any such scheme as binding to the exclusion of all other relevant factors, when it considers an application made under section

46. And we reserve an opinion on the question whether the conditions of an existing permit can be altered. It has been urged on behalf of the petitioners that any new or amended scheme of routes should be brought to the notice of the intending applicants, so that they may be guided in selecting routes at the time of making applications for permits. There is no duty imposed by the Motor Vehicles Act upon the Transport Authority to do so, but it is conceded by the Transport Authority that without knowing a scheme or the,, changes proposed in an existing scheme, it is not possible for the applicants to choose and select routes at the time of applying for them. It is therefore not necessary to decide how far publication of schemes or amendments to existing schemes is a necessity under general law. We hope that the Transport Authority will act according to what has been conceded on behalf of it before us. As regards the prayers that the Transport Authority should not issue a permit to the Syndicate, or that it should not issue a permit to the Syndicate on a monopoly basis, it is stated by Mr. Valliani that any such decision is tentative and' that the Authority will, in considering applications for permits, give due consideration. to the representations of interested persons. It is not for this Court to perform the functions of the body to whom these functions have been entrusted by the Legislature. Our duty is to see that the body acts in accordance with the law. It is true that the Syndicate has some directors appointed by Government, but this does not contravene any section of the Motor Vehicles Act, nor can we presume that this fact will have such an influence on the mind of the authority that in coming to a decision upon applications by the Syndicate or other persons it will refuse to apply its mind to relevant considerations or by guided by irrelevant considerations. A point was raised by Mr. Hafiz that the Provincial Transport Authority had not been duly constituted. The Sind Government had published a Rule constituting that authority, but section 44 states, that the Provincial Government shall, by notification in the Official Gazette, constitute for the Province a Provincial Transport Authority," , and to the affidavit of the Provincial Transport Authority is attached a notification dated 31st March 1953, constituting the Provincial Transport Authority. Mr. Hafiz's argument appears to us destructive of his Writ Petition, since the permits which he prayed should be regarded as permanent permits were issued by this Authority and it is this same Authority which he seeks to restrain. There is no prayer in the nature of quo warranto. But in truth since Government is empowered to constitute the Authority by notification the mere fact that its predecessor has incorporated the notification in a rule does not involve the consequence that Government should again adopt the procedure of a rule ; it is competent to constitute the transport authority by notification as provided by section

44. From the beginning we were impressed by the fact which was alleged on behalf of the petitioners and conceded by Mr. Valliani, who appeared for the Provincial Transport Authority and the Transport Appellate Authority, that temporary permits under section 62 (c) of the Motor Vehicles Act have been issued from 1947 up to this time. Under the provision of law temporary permits could be issued during the subsistence of a particular temporary need. Mr. Valliani has argued that a part of the population of Karachi consisting of refugees was either continuously shifting or was likely to be shifted from place to place under the policy of the Government to settle them in suitable localities and that this situation created a particular temporary need which has existed during the last nine or ten years and justified the issue of temporary permits under that provision of law. This explanation is entirely unsatisfactory, and we reject it as such, with a view only to avoid future misunderstandings, but without prejudice to the issue of temporary permits under section 62 (c) on H account of any other particular temporary need. Clause (d) was inserted after clause (c) in section 62 by the Motor Vehicles (Sind Amendment) Act, 1948. The new clause provides an additional occasion for issuing temporary permits. Another allegation made on behalf of the petitioners by which we were impressed, was that the Provincial Transport Authority is prejudiced in favour of the Karachi Transport Syndicate Ltd., and therefore other applications for permits made by bus owners would not get a fair and impartial deal. Sufficient material has been placed on record to show that the Transport Authority promoted the Syndicate, wanted to give facilities to it acted in a manner to give the impression of partiality and the' Syndicate itself seemed to be certain of favourable treatment according to their own wishes ant desires. The constitution of the Syndicate was discussed in the office of the Chairman of the Transport Authority (p. 45 of W. P. No. 75). The Chief Commissioner informed the Press that the buses of the Syndicate would be on the roads from the 1st of January 1957 (p. 43 of W. P. No. 75) and the Chairman of the Transport Authority himself certified that the Syndicate was registered (p. 47 of W. P. No. 75). It was admitted by the Secretary of the Transport Authority that the Syndicate was formed by that Authority (p. 49 of W. P. No. 75) ; the Syndicate advertised in the papers that it would commence operations from the 1st of January 1957 (p. 61 of W. P. No. 75); and mentioned in the advertisement the routes on which its buses were to run. On the next day the Secretary of the Transport Authority wrote that the re-allotment of routes was to be considered in the office of the District Magistrate, who is the Chairman of the Transport Authority (p. 59 of W. P. No. 75) ; a public notice was then issued, inviting applications (p. 51 of W. P. No. 75). Three days after this notice the Syndicate applied for route permits on exclusive basis" (p. 63 of W. P. No. 75). It is stated in para. 19 of Writ Petition No. 75 "that the petitioners under stand that on 11th February 1957, Respondent No. 1 Authority held a meeting -to which the petitioners as objectors to the, application of Respondent No. 2 were not invited and were not in fact heard. But it is believed that Respondent No. 1 Authority decided to grant stage carriage permits to Respon dent No. 2 on the routes applied for- by them on an exclusive basis. Such a decision if taken, would be completely contrary to the mandatory provisions of the Motor Vehicles Act and the rules framed thereunder :- In reply to these allegations it is stated in para. 19 of the Counter Affidavit as follows: "Regarding allegations contained in para. 19 it is submitted that Provincial Transport Authority had to take tentative decisions and put them before the various applicants at the time of hearing objections 'which was fixed on 14th February 1957. Without taking any tentative decisions it would be impossible to invite the objections from the Bus operators to the proposed scheme of the Provincial Transport Authority which was drawn up in the interest of the public in general and could only be approved and modified in the light of the objections of the various bus operators who were expected to appear before the Provincial Transport Authority, on 14th February 1957 and were expected to place their view or the proposed scheme provisionally approved by the Provincial Authority in its meeting dated 11th February 1957. But instead of attending this meeting and putting forward their suggestions and amendments to the proposals of the Provincial Transport Authority to prove its bona fides in the interest of the public the petitioners above-named and other bus operators have rushed to this Hon'ble Court and as such their 'petitions are premature and liable to be dismissed on this ground alone." The reply of the petitioners is that the Syndicate was the creation of the Transport Authority itself and the course of events had made it clear that it was to receive a favourable treatment and to expect under these circumstances that objections would be considered impartially was to disregard facts and to entertain hope against hope. We are satisfied that the petitioners were justified in entertaining these views. We are, however, face to face with fait accompli for, as pointed out by Mr. Valliani and by Mr. Manzer-i-Alam, the Syndicate has been formed and the Transport Authority has played its part as it was the company cannot be dissolved or declared invalid on account of the Writ Petitions before us. Under these circumstances, and in view of the impression which we took of the situation, he has offered to meet the ends of justice by giving an undertaking to the following effect :- "The applications for permits are pending which will be considered fairly and impartially after giving full opportunity to the applicants for raising objections, and all objections will be decided without being prejudiced and in disregard of the tentative decisions taken by the Transport Authority and with the object of carrying out the pro visions of law." We questioned the advocates for the petitioners repea tedly to suggest as to what direction could possibly be given in order to remove the chances of prejudiced decisions by the Transport Authority in favour of the Syndicate. But in reply we were only told of the importance of granting suitable road permits to the bus owners, their effect on their means of livelihood and of hardships resulting from unjust decisions. Under these circumstances we are satisfied that the under taking given on behalf of respondents Nos. 1 and 3 is the maximum that can be achieved by the petitioners. We are alive to the possibility of the petitioners feeling easily aggrieved if their applications are not granted as desired by them, and of the difficult situation in which the Transport Authority has placed itself with reference to giving satisfac tion to the applicants for permits. The Transport Authority should have kept itself away from the promotion of the Syndicate. We have every reason to trust, however, that the undertakings will be fulfilled. Mr. Valliani has filed on behalf of the Authority a clarification of the position which the Provincial Transport Authority has now adopted ; this reads as follows :- "P. T. A. has full right to re-organise or modify the specified routes in the interest of public convenience, safety etc., P. T. A. has full right after careful consideration of each application for permit on its merits to reject or allow the said application and allot any route to any operator at the time of issuing fresh permit or at the time of so-called renewal taking into consideration the interest of public in general and smooth running of the Transport System in accordance with the provisions of Motor Vehicle Act. P. T. A. will dispose of pending applications which have been invited under the provisions of section 57 of Motor Vehicles Act in accordance with the procedure prescribed by the said Act after giving opportunity to the various applicants to amend their applications if they so desire and apply for the modified routes which P. T. A. has approved taking into consideration the interest of the public in general. The various applicants will be given hearing individually in accordance with the provisions of Motor Vehicles Act at the time of disposal of the pending applications. P. T. A. will dispose of pending applications on its own merits without being influenced in any way by the tentative decision taken so far. Pending disposal of these applications. P. T. A. will have full right to act in accordance with the provisions of section 62 (c) or (d). The objections of the various applicants will be considered individually and not en bloc or through unregistered Association or Associations. The P. T. A. will consider all pending applications of various bus operators as one made under the provisions of section 57 and will dispose of these applications accordingly if the contention of P. T. A. regarding application of section 62 (c) is not accepted by this Honourable Court. This undertaking is without prejudice to the legal objections taken by the respondents about the maintain ability of the three connected writ petitions filed by the petitioners and consequent prayer for their dismissal." In addition Mr. Valliani has stated that the Transport Authority will publish by affixing on its notice board any new scheme or amendments in the existing scheme of the routes in order to facilities the amending of pending applications for permits. We make no comment on the above clarification and additional statement but should point out that they are to be read subject to the undertakings given by the Transport Authority. The petitions, therefore fail and are dismissed. But since the Authority itself has been under the impression that section 58 had not been amended, and since the issue of temporary permits for many years contravened the Act, we think there should be no order as to costs of Mr. Valliani's clients, Mr. Manzar-i-Alam on behalf of the Syndicate, should be given his costs by application in Writ Petition No. 75 of 1957. A. H. Petition dismissed.