P L D 1979 Quetta 45 (PLP)

(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 inconsist ent 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 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 determine, or (h) 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." Rule

96. Appeal against orders of Regional Transport Authority.

The authority (hereinafter referred to as the Appellate Authority) to hear and decide an appeal against the orders of a Regional Transport 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. Rule 96‑A. Appeal against the orders of Provincial Transport Authority.-- The authority to hear and decide an appeal shall be the Board of Revenue." A perusal of section 66 of the Ordinance would reveal that any person aggrieved by an order of the Regional or Provincial Transport Authority in respect of a route permit etc. as explained in this section or any condition attached thereto, could file an appeal to the prescribed authority. The grounds upon which appeals, could be filed have been enumerated in detail in this section but they mainly deal with the matters connected with the route permits, and are conspicuously silent about the details of such conditions which may be attached to a route permit, although a reference thereof is to be found in the opening paragraph of section 66 of the Ordinance. Since there is a specific mention of the conditions attached to a permit in section 66 of the Ordinance therefore it can be said without any fear of contradiction that such appeals would include appeals against any condition, of whatever nature, attached to a route permit and would also include the order varying or modifying a time‑table which is to be issued alongwith the route permit to the disadvantage of any party, as time‑table is an essential part of a route permit and thus falls within the meaning of word "condition" as used in section 66 of the Ordinance. In this context a reference to section 50 (2) (ii) of the Ordinance reproduced below would be most pertinent as it deals with the conditions which can be attached to a route permit and the daily service programme of the buses which does include the time‑table as a integral part thereof :‑ "Section

50. Conditions for grant of stage carriage permits.‑ (1) ........................................ (a) ............................................. (b) ............................................. (2) ............................................. (i) ............. (ii)

that a specified number in return trips of daily service shall be maintained on the route specified in the permit and that they may be varied only in accordance with the specified conditions :‑ (iii) ............................................. (iv) ............................................. (v) ............................................. (vi) ... ....................................... (vii) ............................................. (viii)......... A plain reading of sections 66 and 50 is enough to rule out the contention of Mr. Hanafi that an appeal could only be filed on the grounds explicitly enumerated in section 66 itself and that fixation of time‑table was not thereby covered. Suffice it to say that the opening words of section 66 of the Ordinance made it clear that a person could competently file an appeal if he felt aggrieved by the refusal of Provincial or Regional Transport Authority to grant a permit etc. but also if he was aggrieved by any unfavourable change in any conditions attached to a permit because such conditions are not detached from the route permit. However the question whether an appeal could be filed in this case (Petition No. 122/1977) shall be seen later when we will distinguish the appealable orders from non appealable orders passed under various provisions of the Ordinance and the rules.

5. The next question that requires decision being closely connected with the point discussed earlier shall be with regard to the authority to whom the appeals would lie. Section 66 of the Ordinance only mentions the word "prescribed authorities" but does not name them. However this position stands clarified by the perusal of rules 96 and 96‑A which describe the appellate authorities. Rule 66 says that in case of an order passed by the Regional Transport Authority and covered by any one of the clauses (a) to (g) of section 66 or section 67‑E of the Ordinance appeal would lie to the Chairman of the Provincial Transport Authority while rule 96‑A provides for appeals to the Board of Revenue Baluchistan in case the impugned order was passed by the Provincial Transport Authority or the Chairman thereof. For further elaboration of this position and also in order to briefly describe the functions of Regional Transport Authority, the Provincial Transport Authority, we may refer to their respective functions in suitable detail. In fact, the Regional Transport Authority and the Provincial Transport Authority and the Chairman of the latter are the main authorities who are functioning in the Transport field and by virtue of section 46 which is reproduced below and other provisions of the Rules they have to perform various kinds of functions to regulate the Transport activities;

Section 46. Transport Authorities: (i) ..................... ................... (ii) ............................................. (2) The Provincial Transport Authority or a Regional Transport Authority shall consist of such number of Government Officers as Government may think fit to appoint, but no person who has any financial interests whether as proprietor, employee or otherwise in any Transport undertaking, shall be appointed or continue as a member of the Provincial or a Regional Transport Authority. (3) .......................... (4) .. (5) . ........................................................................................ (6) The Provincial Transport Authority shall exercise and discharge the following powers and functions, namely‑-- (i) to coordinate and regulate the activities and policies of the Regional Transport Authorities ; (ii) to perform the duties of a Regional Transport Authority‑ (a) ............................................. (b) ..... (iii) ............................................. (iv) .. We will not go into the details of these functions as the same can be found in the Ordinance as well as in the Rules. Suffice it to say that some o these functions such as dealing with the issuance etc. of route permits and conditions attached therewith is one of such functions which directly affect .the Transporters and, therefore, orders passed in this connection have been made appealable vide clauses (a) to (g) of section 66 of the Ordinance. There may be many other functions which do not directly affect the Transporters or even if they affect the Transporters, it is not considered expedient by the Legislature to make them appealable in order to avoid challenges to Government Policies framed from time to time to regulate the Transport activities. Accordingly these functions can be divided into two categories. The first category consists of such actions which are covered by subsections (a) to (g) of section 466 of the Ordinance (may be read with section 50 of the Ordinance for gaining clearer picture of appealable orders) while the other category consists of such other actions and orders which are outside the scope of section 66 (a) to (g). Since such orders which are covered by section 66 (a) to (g) can be passed both by the Provincial Transport Authority as a body and the Chairman thereof sitting singly (if passed in appeal against the order of Regional Transport Authority) or by the Regional Transport Authority of whom the former deals with the buses plying in the region allotted to it within the Province, therefore it would be seen that under the scheme of the Ordinance only such orders as have been passed by any one of these authorities which are covered by section 66 (a) to (g) of the Ordinance would be appealable in the manner prescribed in rules 96 and 96‑A viz. if the order was passed by the Regional Transport Authority the appeal would be heard by the Chairman of the o Provincial Transport Authority sitting singly and if the order was passed by the Provincial Transport Authority on the original side the appeal would lie to the Board of Revenue. It may be mentioned here that the scheme of law appears to be that all orders passed on the original side which include the orders passed in respect of route permits and conditions attached there with shall be passed by the Provincial or Regional Transport Authority as a body and not by an individual officer belonging to these bodies. However when appeals are to be heard against the orders of the Regional Transport Authority the Chairman of the Provincial Transport Authority sitting singly would be competent to hear such appeals as would be discussed later in sufficient detail. But in case of an order of the Chairman Provincial Transport Authority who happens to be member of the Board of g Revenue, or the Provincial Transport Authority (as a body) passed on original side appeal would lie to the 'Board of Revenue of which two members would constitute a legal body to bear such appeals. The other orders which are not covered by section 66 (a) to (g) of the Ordinance would not be appealable though a representation etc. may lie against them to the next senior authority in the heiraxchy of the authorities functioning in the field of, Transport. 6. Mr. Khalid Malik attempted to argue that all orders of whatever nature they may be were appealable to the Board of Revenue by virtue of the fact that rule 96‑A uses the word "the orders" and does not confine its scope to those orders above which are covered by clauses (a) to (g) of section 66 of the Ordinance. We are unable to agree with this contention as both rules 96 and 96‑A only describe the authorities to whom the appeals against various orders passed by the authorities functioning in the Transport field such as Regional Transport Authority and Provincial Transport Authority or by the Chairman thereof would lie. Though it is not very essential to deal with this question in this case after what we have said above, but in order to clarify the position of law further we may observe that these Rules by themselves do not make a provision for appeal as this purpose is served by section 66 of the Ordinance itself. Even otherwise the purposes of framing the Rules always is to facilitate the operation of the statute under which such rules have been framed. The rules can neither add nor subtract anything or enlarge the scope of law to which they are subservient and in F case any unhappily worded rule suffers from such a defect it would be ultra vires to the extent of inconsistency with its parent law. Accordingly the scope of rules 96 and 96‑A is confined only to the extent of describing the authorities to whom appeals should be filed, and not any further. 7. Now let us advert to the question as to whether appeal should have been filed by Mr. Hanafi or not, and if so, what was the effect of his failure to file appeal to the Board of Revenue against the order of the Chairman Provincial Transport Authority and whether he would be entitled to the discretionary relief by this Court in such circumstances. Mr. Hanafi has contended that the order in question was ab initio void as it concerned the policy of the Department framed in order to facilitate the running of the buses within and without the Province and affected a large number of Transporters, hence, it was not covered by any one of the provisions of section 66 of the Ordinance and was only an administrative order passed by the Chairman Provincial Transport Authority on the original side. However, hearing of the interested parties was necessary while passing this order as the right of hearing has been guaranteed by law in all cases in which interest of some person is likely to be affected and this rule commonly applies to the orders of administrative or executive nature. The argument is not without substance. The impugned order was definitely an order which affected a large number of Transporters and was made to regulate the policy of the Government with regard to the running of the buses, therefore it cannot be said to be an order falling within the purview of clauses (a) to (g) of section 66 of the Ordinance. However hearing of the petitioners was necessary as it directly affected their interest. Again this order was not passed in an appeal against any order of the Regional Transport Authority, therefore it should have necessarily been passed by the Provincial Transport Authority sitting as a body and not by the Chairman sitting singly. Accordingly on the score as well it deserved striking down by this Court under Article 199 of the Constitution. We have already dealt with the point that a variety of orders can be passed by the Regional Transport Authority as well as Provincial Transport Authority, as also the question of appealability or otherwise of such orders and we need not reiterate their nature and effect. In order to appreciate the argument of Mr. Hanafi suffice it to say that admittedly the order in question was not passed by the Chairman Provincial Transport Authority while hearing an appeal against the order passed by the Regional Transport Authority but he revised the policy that affected several Transporters. Such decision could only be made by a body of the Provincial Transport Authority consisting of at least 2 members including the Chairman or his nominee and not by the Chairman Provincial Transport Authority alone, as the latter was competent to hear, while sitting alone, only the appeals filed to him on the grounds mentioned under section 66 (a) to (g) of the Ordinance. All other decisions pertaining to the functions of the Provincial Transport Authority were required to be performed by a body of the Provincial Transport Authority. In this connection rule 54 which deals with the terms of appointment etc. of the members of the Provincial Transport Authority and the quorum required to constitute a legal and valid body of the Provincial Transport Authority to deal with such matters may be seen. This rule provides that at least two members of the Provincial Transport Authority headed by it Chairman or his nominee would constitute a valid quorum. Since the impugned order was passed by the Chairman sitting singly it is not tenable in law and as argued by Mr. Hanafi this Court should not refuse to grant relief to the petitioner only on the ground that he could have filed a representation against this order to the next higher authority. In support of his contention he referred to the case of Lt.‑Col. Nawabzada Amir Ali v. The Controller of Estate Duty and others (PLD1961SC119) wherein it was held that the availability of other adequate remedy not being a rule of law but a rule by which the Court regulates its discretionary jurisdiction, therefore, if the Court was of the view that the impugned order was completely without jurisdiction writ could be issued despite fact that other remedy was available. The dictum laid down in this case was followed in the case of Murree Brewery Company v. Pakistan (PLD1972SC279) as well as on Sind Employees' Social Security --institution v. Dr. Mumtaz Ali Taj and others (P L D 1975 S C 450). In the light of the rule laid down by the Supreme Court in these cases it is an admitted position of law that this Court would not refuse to grant relief to an aggrieved part only on the ground that alternate remedy was available to him. On the other hand if an impugned order appeared to be ab initio void due to complete I lack of jurisdiction or substantial defect in jurisdiction, this Court would not refuse to strike it down in exercise of its powers under Article 199 of the Constitution. We are, therefore, of the view that the impugned order passed in this case by the Chairman sitting singly was wholly without jurisdiction as by the nature of this order it is evident that it affected a large number of Transporters due to revision of policy hence it was required to be passed by the Provincial Transport Authority in its meeting having the quorum as envisaged by rule 55. The impugned order is accordingly ab initio void and illegal for want of jurisdiction and therefore the petitioner is entitled to relief by this Court. 7‑A. As far as Petition No. 160 of 1977 is concerned it is evident that the order of the Regional Transport Authority was challenged through a repre sentation which was decided by the Chairman, Provincial Transport Authority treating it to be an appeal as such Mr. Munawar Ahmed Mirza, appearing for the petitioner is justified in arguing that this was an order passed in appeal filed under section 66 of the Ordinance and as there was no provision under law for filing second appeal to the Board of Revenue, and the one filed by him under the directions of the former was only an exercise in futility. In this connection suffice it to say that the Ordinance by virtue of section 66 thereof and the Rule framed thereunder contemplated only one appeal and in this case the representation of the 3rd and 4th respondents having been decided treating the same to be appeals no further appeal lay to the Board of Revenue and the one presently pending before the Board of Revenue is without any legal sanction and could therefore be ruled out of consideration. In this petition the only one ground urged to attack the impugned order was that it bad been passed at the instance of 3rd and 4th respondents behind the back of the petitioners, as such the same was illegal and without jurisdiction, being violative of the principles of natural justice. This position has not been controverted by Mr. Khalid Malik. It is admitted position of law that the right of hearing is to be read as a part of every statute even though such statute may be silent about it, hence whatever be the nature of the order, if the right or interest of a party is likely to be affected thereby, the Authority passing the order, whether it be a Curt of law or an executive authority, must hear the parties likely to be affected by such order. Any order passed in derogation of this rule would be invalid and of no legal effect. Putting the impugned order on this test, we find it wholly illegal. For the foregoing reasons we allow both the petitions and declare the impugned order passed by the first respondent namely Chairman, Provincial Transport Authority on 6th July, 1977 in Petition No. 122/1977 and orders dated 2nd July, 1977 and 11th August, 1977 passed by the Chairman Provincial Transport Authority in Petition No. 160/1977 as void, illegal, and without jurisdiction and the same are accordingly set aside with no order as to costs. S. A. H. Petitions allowed.