1969 PLP 261 (SCMR)

HAMOODUR RAHMAN, C. J.‑These appeals, by special leave, arise out of two judgments of the High Court of West Pakistan dismissing two writ petitions, being Writ Petitions Nos. 825 and 1171 of 1968, filed by the appellants in these appeals respectively, to challenge the correctness of the same order of the Member, Board of Revenue, passed on the 10th of May 1968, as the Transport Appellate Authority, West Pakistan. Both the petitions for special leave to appeal were heard together and leave was granted in both the petitions to consider the same questions of law. Both these appeals have, accordingly, been heard tog‑they and will be disposed of by this judgment. The facts leading up to these writ petitions may briefly be stated as follows :‑ The Regional Transport Authority, Multan, at its meetings held on the 17th, 18th, 24th and 26th January 1968, considered 69 applications for the grant of route permits on various routes and granted two permanent particular stage‑carriage permits for a period of three years, subject to the usual conditions, to the appellant in Civil Appeal No. 79 of 1968, on the Sahiwal to Lyallpur via Chichawatni route, and two permits to the appellant in Civil Appeal No. 65 of 1968 for the same period and upon the same conditions on the same route. The latter was also granted two more permanent stage‑carriage permits on the Multan Sahiwal via Khanewal route. The respondent No. 3 was granted one permanent particular stage‑carriage permit on the Multan Lyallpur via Chichawatni route, but the respondents Nos. 4, 5 and 6 were not granted any permit. From these orders respondents Nos. 3, 4, 5, and 6 went up in appeal to the Member, Board of Revenue. The latter took the view that the Regional Transport Authority had, in granting the route permits, "neglected the merits of the appellants" and failed to notice that "they were existing operators and better qualified for the grant of permits." The Member, Board of Revenue, was furthermore, of the view that the order of the Regional Transport Authority showed that it had not taken into consideration, "the interest of the public generally and unnecessarily favoured the respondents". The orders of the Regional Transport Authority were, accordingly, set aside but no consequential order was made. It is from this order that the appellants‑ in these appeals went up to .the High Court. In the case of the appellant in Civil Appeal No. 65 of 1968 one Division Bench of the High Court of West Pakistan took the view that the order of the Regional Transport Authority was "not itself a just and proper order", in so far as the applications of the unsuccessful candidates had been declined on irrelevant pleas and arbitrary grounds without properly considering the merits of each case. The order of the appellate authority was, therefore, "neither inequitable nor discriminatory." In the case of the appellant in Civil Appeal No. 79 of 1968 another Division Bench of the same High Court also independent ly came to the conclusion that the criticism of the Member, Board of Revenue, to the effect that the Regional Transport Authority had not properly considered the merits of each case, was "fully justified." The argument that the appellate authority had no jurisdic tion, under subsection (2) of section 121 of the West Pakistan Motor Vehicles Ordinance, 1965, to reverse an order of the Regional Transport Authority merely on account of an error, omission or irregularity, if such error, omission or irregularity did not materially affect the merits of the case, was also repelled by both the Benches, because, the irregularity in the proceedings of the Regional Transport Authority had, in the opinion of the High Court, in each case, affected the merits of the decision. Leave was granted in these cases to consider (i) as to whether the High Court was justified in taking the view that the order of the Regional Transport Authority was not a just and proper order passed upon full consideration of the merits of each case, and (ii) whether the appellate authority could, under section 121 (2) of the West Pakistan Motor Vehicles Ordinance, 1965, reverse the order of the Regional Transport Authority in the facts and circumstances of this case. Learned counsel appearing in support of these appeals have placed before us the orders of the Regional Transport Authority and it appears from these that the appellant in Civil Appeal No. 65 of 1968 was granted the permits on the following considerations :‑ (i) that it had been plying on this very route in the past under two temporary .permits. (ii) that it had an authorised capital of Rs. 2 Lacs, (iii) that it owned five vehicles and a workshop of its own at Sahiwal, and (iv) that it already held two permanent particular stage. carriage permits on the Sahiwal‑Chichawatni route, i.e. part of the proposed route. Similarly in the case of the appellant in Civil Appeal No. 79 of 1968 the reasons which impelled the Regional Transport Authority to grant it two permanent particular. stage‑carriage permits, even thought it was a new‑comer in the fiel, were :‑ (i) that it had a sum of Rs. 25,000 in cash in the bank, and (ii) that it was in a position to put new vehicles on the road at short notice. It is, therefore, urged that valid and very weighty reasons were given by the Regional Transport Authority for preferring these two appellants. The appellate authority was, it is contended wrong in saying that the merits of the cases had not been considered. As against this, we are constrained to observe that the minutes of the proceedings of the Regional Transport Authority itself disclose that the unsuccessful candidates were refused permits on wholly irrelevant grounds. We have ourselves looked into these minutes, because, no one has appeared in these appeals on behalf of the respondents, and we find that Messrs Niaz Bus Service were refused permits simply on the ground that they hailed from Lahore region and held no permits for this particular region, although they had rich experience in this line of business, possessed a modern workshop and were of sound financial position. Their record of service was also described as being "remarkable" and they had 27 spare vehicles in their possession. The Pak‑Punjab Regional Transport Service, Chishtian, was granted only one permit "keeping in view the services rendered to the nation by the late Chaudhury Ali Akbar, the managing partner of the company." This transport company already held two temporary permits on this very route against six vehicles, four of which were of 1966 and 1967 model. The reason given was, on the face of it, not a reason which was justifiable under the West Pakistan Motor Vehicles Ordinance. Section 49 of the Ordinance, which categorises the matters which the transport authority must take into consideration in deciding as to whether to‑grant or refuse a stage‑carriage permit, does not‑mention "services to the nation" as one of the matters to be so taken into account. The Rahbar Bus Service Limited, which already held six temporary stage‑carriage permits, two such on Sahiwal‑Lyallpur, Sahiwal‑Jhang and Sahiwal‑Haroonabad routes, was refused a permit on the ground that "its Managing Director, Malik Nawab Khan, was already holding certain number of particular stage carriage permits on other routes." This again was not only not a matter which fell within the ambit of section 49 but also showed some kind of a personal bias against the Managing B Director. We fail to see why the company should be disqualified simply because its Managing Director owns permits on other routes in some other capacity. Similarly the Trans Pakistan Bus Service Ltd., which already held 12 permits on 21 vehicles and had its headquarters at Khanewal, was refused a permit "keeping in view their poor performance in the past and their bad record and reputation." This was no doubt a relevant ground but on the whole it appears to us from the analysis of the reasons given by the Regional Transport Authority, which we have set out above, that the criticism of the learned Member, Board of Revenue, as regards the manner in which the Regional Transport Authority dealt with the applications of the unsuccessful candidates, was fully justified. The learned counsel appearing for the appellant in Civil Appeal No. 79 of 1968 has pointed out that on 15th December 1967, i.e. a few days before the permits were granted to it, it had actually purchased three chassis for three buses. But this by itself makes it manifest that on the date when the permits were granted to it, it had no fully equipped bus in its possession which it could have immediately put upon the road. Although the learned counsel has tried to show us that the appellant had also paid a certain sum of money to coach‑builders for the fabrication of the bodies on the chassis, purchased by them, we have to point out that this again is a fact which belies the Regional Transport Authority's assertion that this particular appellant was .in a position to put new vehicles on the road at a short notice. Coming now to the second question regarding the scope of an appeal under section 121 (2) of the Ordinance, learned counsel has contended that this prohibits the appellate authority from interfering in its appellate jurisdiction, unless the decision of the Regional Transport Authority has materially affected the merits of a case. Subsection (2) of section 121 is in these terms "(2) In an appeal under this Ordinance, the order appealed from shall not be altered or reversed merely on account of any error, omission or irregularity, not materially afecting the merits, in the procedure or order of the original authority." As already stated the High Court has, in both cases, taken the view that in the facts and circumstances disclosed the irregularity in the proceedings of the Regional Transport Authority had, in fact, affected the merits of the decision and, as such, no benefit could be derived by the appellants in invoking in aid the above provisions. Learned counsel have not attempted to explain as to what materially affecting the merits means, but adopting the analogy of the election law if materially affecting the result means that someone has been deprived of a permit who might otherwise have been entitled to it, then these conditions were fully satisfied in the present case. Upon the reasonings of the appellate authority, which the High Court accepted and we too have accepted, certain persons were deprived of their rights, because, their cases were not considered in accordance with law and they were refused the grant of a route permit upon wholly irrelevant considerations. If their cases had been considered properly and in accordance with law, the result might well have been different. Therefore, the omissions and irregularities committed by the original authority, had in the present case, certainly affected the merits also. We are, therefore, satisfied, after hearing both the learned counsel appearing for the appellants, in these two appeals. at some length, that no just exception can be taken to the orders of the High Court dismissing the writ petitions. In saying this, however, we must point out that the learned Member, Board of Revenue's order was also defective, in so far as he having set aside the order of the Regional Transport Authority, had not made any consequential order. He should have ordered the Regional Transport Authority to re‑consider the matter. While dismissing these appeals we must, therefore, make it clear that the Regional Transport Authority will now take up the question of granting route permits on the routes concerned as soon as possible and consider the applications of all the parties to these appeals, who may apply, on their merits, regardless of any observation that may have been made either by the High Court or by this Court in the disposal of the writ petitions or the appeals there from. Until this has been done, the existing arrangements will continue and the status quo will be maintained, not in the interests of the appellants but rather in the interests of the travelling public. We would, however, impress upon the Transport Authorities the urgency of the matter and direct that they should dispose of the matter as expeditiously as possible. For the reasons given above, these appeals are dismissed, but since no one has appeard to oppose them there will be no order as to costs. Appeals dismissed.