P L D 1958 S (PLP)

SHAHABUDDIN. J.‑This is an appeal by special leave from the judgment of the High Court of West Pakistan, Karachi Bench, by which three writ petitions filed by the present appellants and some others against the Chief Commissioner, the District Magis trate, the Provincial Transport Authority of Karachi, and the Karachi Transport Syndicate and Secretaries to the Ministries of the Interior and Communication in respect of issue of permits for operating Transport in Karachi were dismissed. The appellants are individual Transport Operators on some of the bus routes in Karachi in respect of which the P. T. A. Karachi has been granting them temporary permits for periods not exceeding three months from time to time. The system of granting such temporary permits has been in vogue since 1947; and the case of the appellants before the High Court was that this was against the provisions of the Motor Vehicles Act, 1939 as under S. 62 of that Act Temporary permits should ordinarily be given for three to five years under S. 58 of the said Act. In November 1956 the Chief Commissioner, Karachi, announced at a press conference that with a view to the reorganizing the bus system in Karachi on proper lines a Bas Syndicate as a private limited joint stock company with a capital of three crores would be formed and that there shall be12 Directors 3 of whom would be nominated by the Provincial Government. The constitution of this Body was discussed by the P. T. A. and in this connection it was urged by the appellants and the other petitioners before the High Court that the P. T. A. and the Chief Commissioner to whom appeals against the decision of the P. T. A. lay, were biased in favour of the Syndicate and consequently though the P. T. A. had called for applications for permits from all persons interested in transport business, those applications would not be dealt with by that body impartially. In inviting applications it was stated by the P. T. A. that the reallotment of the bus routes would be considered. One of the contentions before the High Court was that the P. T. A. had no power to reallot the routes. The prayers in the writ petitions therefore were that the P. T. A. be directed to renew permits of the petitioners on a permanent basis without changing the routes, that the P. T. A. should be restrained from considering or granting the application for permits put in by the Syndicate as well as from re‑allotting or re‑organising the ‑existing routes and that the P. T. A. should be directed to give proper opportunity to the petitioners to oppose the applications for the grant of permits. Section 58 of the Motor Vehicles Act 1939, (this will for the sake ‑of convenience be referred to hereinafter as the Act) under subsection (1) of which the period of a permit is 3 to 5 years within the discretion of the P. T. A., was amended by the Sind Amendment Act of 1948 (Act XIV of 1948) by which a provision was introduced as subsection (3) to the effect that not withstanding subsection (1) the Provincial Government might order the P. T. A. or the R. T. A. to issue permits for any period less than the minimum period prescribed under the Act, which is three years Referring to this Amendment and a letter of 1951 issues by the Government of Pakistan to the P. T. A. Karachi directing that permits should not be issued for periods exceeding three months, the learned Judges of the High Court refused the prayer that the permits of the petitioners before them should be declared to be permanent permits. They then considered the relevant provisions of the Act and came to the conclusion that there was nothing in those provisions, which prevented the transport authority from devising a new scheme of routes or from amending any such existing scheme from time to time. The prayer in respect of the proposed re‑allotment of routes was therefore refused, as regards the allegation of bias, however, the learned Judges on a consideration of the points mentioned in the writ petitions as well as those stated in reply on behalf of the transport authority observed that they were satisfied that the petitioners were justifies in apprehending that their objections would not be considered impartially. Nevertheless, they declined to interfere as the Syndicate had been formed and could not be dissolved in writ proceedings and on behalf of the transport authority ail undertaking was given to the effect that it will in deal ing with the applications for permits be not influenced by the decisions already taken by it, which it said were tentative. The writ petitions were, therefore, dismissed. Although in the petition for special leave to appeal the power of the P. T. A. to re‑allot the existing routes and the vires of the Sind Act amending the Motor Vehicles Act so far as Karachi was concerned, were questioned, having regard to the provisions of the Constitution relating to the administration of Karachi, yet these points were not raised before us in this appeal. We, there fore, proceed to consider this case on the assumption that all the amendments introduced by the Sind amending Act passed in March 1948, which in view of section 6 of the Pakistan (Establish ment of the Federal Capital) Order, 1948 applies to Karachi area, are valid, and that under S. 5 of the above order read with its amending order of 1952, the Chief Commissioner, Karachi, has the powers of a Provincial Government. As for the question whether the Chief Commissioner can have that status after the Constitution came into force' which has yet to be determined, it need not detain us in the present case. Mr. Brohi appearing for the appellants pressed before us that the P. T. A. and the Chief Commissioner as an appellate authority were quasi‑Judicial bodies and that as the Karachi Transport Syndicate was their creature they were naturally biased in its favour and on that account their jurisdiction to consider the applications for permits was ousted, but that if the Syndicate's application was excluded there would be no difficulty, as then the reason for favouring one of the applicants would cease to exist. His contention was that pro motion of Transport Syndicate was not one of the duties of the P. T. A. or the Chief Commissioner under the Act, that the only manner in which Government could take steps to nationalise the transport was to create a Road Transport Board as required under S. 43‑A and that the formation of the Karachi Transport Syndicate did not fall under the said section. According to him it was not open to the authorities in question to interest them selves in one or some of the operators, who are to compete with others. It was urged that the High Court, having come to the conclusion that the apprehension of the petitioners before it on the ground of bias was justified, should have issued a writ of Prohibition instead pf being satisfied with an undertaking from the P. T. A. which is clearly prejudiced in favour of the Syndicate mentioned above. The learned Attorney‑General on the other hand, pointed out that the first question was whether it could be said that the authorities in question were biased and that if this was not established the other question whether these authorities were or were not quasi-judicial bodies need not be considered. According to him there was no question of bias. In our opinion it is not necessary in this case to decide if the authorities in question are quasi-judicial bodies, for, even if it is assumed, without deciding the point, that they are such bodies it cannot be said that they had rendered themselves incompetent on account of bias to deal with the applications for the permits. Nor, do we find ourselves in agreement with the conclusion of the learned Judges that the apprehension of the petitioners before them that they would not get a fair deal was justified. An examination of the relevant provisions of the Act makes it clear that it is primarily concerned with providing for the public necessity, convenience and safety. Section 47 which after the Sind Amendment Act of 1948 (Act XIV of 1948) applies, in the area which formerly constituted the Province of Sind, to the A Provincial Transport also lays down in six clauses (a) to (f) the general principles which should guide the Transport Authority in the matter of granting Stage Carriage Permits. Five of these clauses relate to the public interest and only one to the operators of Transport and that too in order to prevent uneconomic compe tition, which in effect is for the benefit of the public, as such competition would impair efficiency of service. It is noteworthy that while prior to the Sind Amendment Act it was obligatory on the Transport Authority in deciding whether to grant or refuse a permit to take into consideration any representation made by persons already providing road transport facilities or by any association interested in the provision of road transport facilities, the law as it stands since amendment removed this obligation by substituting `may also take into consideration' for `shall also take into consideration' which occurs in the section immediately after clause (f). Then again under S. 58 as it originally stood an application for renewal had, other conditions being equal, to be given preference over new applications for permits; but the Amending Act omitted this provision, and under the section as it has stood since 1948, a permit may be renewed on an application made and disposed of as if it were an application for a permit. This change in the law was cither not noticed or deliberately ignored when the writ applications were filed, for the prayer that the Transport Authority should be directed not to reallot the routes; but to grant permits without changing the routes was obviously based on the provision giving preference to a person already operating on a route, which was omitted in 1948. These amendments emphasise that the only consideration, which should weigh with Transport authority in granting permits is the public interest. That being so, a transport authority could resolve that a Syndicate of operators under proper management and with sufficient capital should be preferred for certain routes over individual operators in public interest. To such a course Mr. Brohi does not object. His contention was that if there was a Syndicate already working the Transport authority could prefer it, but that it had no powers to form a Syndicate of individual operators and give it preference over other persons who are operating transport on their own. Accord ing to the learned Advocate, even the Provincial Government cannot do so except by appointing a Road Transport Board. This argument overlooks the following significant provisions intro duced by the Amending Act of 1948. In S. 43 which deals with the power of Provincial Government to control road transport, the following clause was added " declare that it will engage in the business of road transport service either generally or in any area specified in the notification". More significant than this is S. 48‑A which is to the effect that a Transport authority "shall issue the 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". Under S. 58‑A the Provincial Government may by order direct any transport authority to grant a permit to the Provincial Govern ment or a company in which that Government is a shareholder. These provisions are inconsistent with the transport authority being a quasi-judicial body. However, they make it clear that the Provincial Government can interest itself in any concern operating transport. It is true that in the present case the Provincial Government is not a share‑holder in the Syndicate and can only nominate 3 out of 12 directors, and that may affect its power to obtain a permit it likes or to direct a certain permit being issued, but it cannot be said that the Chief Com missioner is prevented under the Act from taking interest in a concern operating transport. If he could become its shareholder he can certainly nominate some of its directors to secure proper management and the consequent affording of those facilities to the public, which individual operators cannot offer. It was not alleged that the Chief Commissioner had any other motive in this case. Apart from the Act, he has to see to the proper administration in Karachi and transport is an important factor affecting such administration. When he decided that individual operators should be encouraged to form a Syndicate, the P. T. A. considered its constitution. It could do so to form an opinion as to whether the concern could meet the demands of the public or not. As for the contention of bias it would no doubt be pedantic to expect that a transport authority satisfied with the constitution of a Syndicate promoted by the Provincial Government in the interest of the public would come to the public hearing of the applications for permits with minds as open as if they had never formed any opinion at all. But they have to hear the other applicants and as the main question would be about the routes it is possible that after hearing the other applicants the Authority may change its tentative decisions. Similarly the Chief Commissioner as the appellate authority may change his views on hearing the appeal. Their power of arriving at a final conclusion after a public hearing is not taken away as in the cases coming under Ss. 48‑A and 58‑A which as already pointed out leave no discretion in the matter to the P. T. A. or the appellate authority. If it is considered that these authorities cannot but be biased in favour of the Syndicate as public interest is the chief considera tion under the Act, then the bias complained of'. Is covered by. the Statute which makes these authorities alone competent to deal with the applications. In such circumstances persons who appear before these authorities can have no right to object to the constitu tion thereof. In this connection the decision of the Supreme Court of the United States of America in Federal Trade Commission v. Cement Institute (92 Lawyers Ed. 1010) is instructive. In that case an order of the Federal Trade Commission required cement manufacturers and an associa tion formed by them to cease and desist from acting in concert in pricing their goods on a multiple basing point system by which, irrespective of the location of the mill, the price is always the mill price at the basing point plus freight from such point to the place of delivery. This order which was set aside by the circuit Court of appeal was sustained by a majority judgment of the Supreme Court which negatived the contention that the Commission was disqualified by bias to issue that order as its members had already as a result o f an ex‑parte investigation formed an opinion on the question they had to decide. Black, J. who delivered the majority judgment observed as follows:‑ *(701) "In the first place, the fact that the Commission had enter tained such views as the result of its prior ex parte investigations did not necessarily mean that the minds of its members were irrevocably closed on the subject of the respondents' basing point practices Here, in contrast to the Commission's investiga tions, members of the cement industry were legally authorised participants to the hearings. They produced evidence‑volume of it. They were free to point out to the Commission by testimony by cross‑examination of witnesses, and by arguments, conditions of the trade practices under attack which they though,, kept these practices within the range of legally permissi ble business activities. Moreover, Marquette's position, if sustained, would to a large extent defeat the congressional purposes, which prompted passage of the Trade Commission Act. Had the entire member ship of the Commission disqualified in the proceedings against these respondents, this complaint could not have been acted upon by the Commission or by any other Government agency. Congress has provided for no such contingency. It has not directed that the Commission disqualify itself under any circum stances, has not provided for substitute Commissioners should any of its members disqualify, and has not authorised any other Government agency to hold hearings, make findings, and issue cease and desist orders in proceedings against unfair trade practices Yet if Marquette is right, the Commission, by making studies and filing reports in obedience to congressional command, completely immunized the practices investigated, even though they are `unfair', from any cease and desist order by the Commission or any other Governmental agency. *(702) There is no warrant in the Act for reaching a conclusion, which would thus frustrate its purposes. If the Commission's opinions expressed in congressionally required reports would bar its members from acting, in unfair trade proceedings, it would appear that opinions expressed in the first basing point unfair trade, proceedings would similarly disqualify them from ever passing on another." As for the argument that if the Syndicate's application is excluded from consideration there would be no bias on the part of the transport authority, we were not shown any provision under which an application can be so rejected. On the other hand, S. 57 on which the appellants relied strongly requires all the applicants to be heard. That the Syndicate in question consists of individual operators who have been in the field already was not controverted. A public hearing cannot be refused to them because they had formed themselves into a Syndicate, the promotion of which, as indicated already, is not prohibited under the Act. Turning to the facts of the case, we find no justification for the apprehension entertained by the appellants. The learned Attorney‑General told us that there were 3 to 4 hundred buses and about 80 routes in Karachi and that the Syndicate had 100 buses and is an applicant for only 8 routes. These facts were not controverted. The apprehension of the appellants mainly is that the routes they have been operating on, might be given to the Syndicate, but sufficient has been said above to show that under the law as it stands at present, applications for renewal are not entitled to preference over applications for new permits. However, all the applications are yet to be considered and it is open to the appellants to establish that they should be given the same routes on which they have been operating. The P. T. A. may still be presuaded to let the appellants have the routes they wish to have. In this connection Mr. Brohi invited our attention to a certificate issued by the District Magistrate and Chairman P. T. A. Karachi to the effect that permits on long‑term basis will be granted to the Syndicate and to a letter written on 7th December 1956 to an applicant for a new permit, which states that a permit would be issued if the applicant undertook to join the Syndicate; and it was argued that this was coercion of the transport operators who were not willing to join the Syndicate. But on behalf of the respondents reliance was placed on a resolution of the P. T. A. passed on the 29th December 1956, to the effect that the meeting considered the grievances put forward by some of the Bus operators and decided that none of the existing bus operators would be put off the road on account of the formation of the Syndicate. It was also resolved at that meeting that the Syndicate would receive the same treatment as any other bus operator. Subsequently a meeting was fixed for the 14th February for considering the reorganisation of bus routes and issue of permits, but though notice of it was given, the appellants did not attend the meeting. It was argued that on the 12th of February the P. T. A. resolved that permits for certain routes should be given to the Syndicate and that the appellants had no notice of that meeting, but those were temporary permits granted under S. 62 of the Act which does not require that their procedure prescribed under S. 57 should be followed. The P. T. A. has explained that that decision was a tentative one. An undertaking that in deciding the applications the authority would not be influenced by the tentative decision already taken was given to the High Court. As for the appellate authority which the Chief Commissioner he stated in the press conference that no bus operator would be forced to join the Syndicate or would be put off the road. The fact that the Syndicate has applied for only 8 out of about 80 routes shows that there was no actual likelihood of any bias or injustice resulting in the matter of granting permits. Throughout, the arguments proceeded on the basis that the Chief Commissioner alone could hear the appeals from the decisions of the appellate authority, but rule 72 of the Rules framed under the Act is to the effect that the Provincial Government may appoint a Tribunal to hear the appeal from the decision of the Transport Authority. However, for reasons indicated above the Chief Commissioner cannot be said to have become so biased as not to do justice to the appellants. It must of course be noted that they have no vested right in the routes and the authorities should keep in view the public interest in dealing with the permits. There is the undertaking given by the P. T. A. and the District Magistrate who promoted the Syndicate is no longer holding that Office. In the circumstances the apprehension of the appellants is not reasonable. There is another aspect of the matter, which has not been noticed by the High Court. The Motor Vehicles Act is a self, contained Code and in respect of the rights and liabilities created by it the manner of enforcement must be sought within the Statute itself. But in the present case the appellants did not attend the meeting of the Transport Authority on the 14th February 1957, when the question of re‑allotment of routes was to come up for consideration though they had been invited to that meeting and while two of the appellants rushed to Court with an applica tion for a writ even on the 12th February, the other appellants did so on the 20th without attending the meeting of the 14th. When asked as to why they did so, Khawaja Abdur Rahim explained on their behalf that on the 11th the Transport Authority at a meeting held without notice to the applicants gave the Syndicate temporary permits for certain routes; but this informa tion admittedly was available to the appellants only during the hearing of this appeal. In one of the writ petitions, Petition No. 75 of 1957, it was however alleged that the petitioners therein who are three of the present appellants had heard that a decision was taken by the P. T. A. in favour of the Syndicate at the meeting of the 11th, but such information was hardly sufficient for their rushing to Court for a writ when a meeting was to be held on the 14th at which they could have raised objections to any decisions taken on the 11th which, at best, were only tentative at that stage. Then again, the prayer pressed before us was one which cannot be granted under the Act as the very S. 57 on which Mr. Brohi relied makes it obligatory on the Transport Authority to hear all the applicants. No provision of law was shown to us under, which an application can be directed to be rejected merely because it is suspected that the authority is in favour of the particular appellant. These two circumstances were perhaps sufficient for "dismissing the application for a writ in limine. However, even on merits the appellants have no case. The appeal is, therefore, dismissed with costs. K. S. A. Appeal dismissed.