P L D 1968 Supreme Court 270 (PLP)

HAMOODUR RAHMAN, J.‑This certificated appeal arises out of a judgment of a Division Bench of the High Court of West Pakistan at Peshawar, in a petition under Article 98 of the Constitution, filed for quashing the orders of the Regional Transport Authority and the Member, Board of Revenue, West Pakistan whereby a route permit granted to the respondent was suspended for a period of 6 months, from the 17th July 1964, under section 60 of the Motor Vehicles Act, 1939. The respondent is the holder of a stage carriage route permit No. Patp. 163 and the passenger bus No. PR‑5052, belonging to the respondent, is covered by this route permit. The said vehicle, on the 7th March 1963, met with an accident while coming from Jamrud to Peshawar, due to skidding on the slippery road after a shower. The vehicle, it appears, after the skid, turned over on its side and one of the passengers who had jumped out in his anxiety to avoid injury, was crushed under the vehicle. For this accident, the driver of the vehicle was tried by a Magistrate of the First Class at Peshawar, on charges under sections 279, 304‑A and 337 of the Pakistan Penal Code, but was. on the 29th January 1964, discharged under section 251 of the Code of Criminal Procedure, because, upon the evidence on the record it was found "that the driver was not at all at fault." He bad, it was said, actually tried to control his.. lorry which was going at a speed of about 20/30 miles per hour. This was considered to be less than the speed at which ordinarily buses ply, i.e., about 30 miles per hour. So the driver was nor at all going at a high speed and there was no question of the, passenger's death being caused either by his negligence or by his over‑speeding. The Magistrate further held that the passenger, who lost his life, "was crushed by his own negligence as he was the only victim to this accident, while the rest of the passengers escaped after receiving minor injuries." The passengers who escaped were summoned but none of them turned up before the Court to depose against the driver and from this, it was inferred that they found no neglect or other fault on the part of the driver. Otherwise, the learned Magistrate thought, they would have come to the Court and disclosed the negligence of the driver and claimed compensation. After the discharge of the driver, it is alleged, the Regional Transport Authority, Peshawar, without giving any notice to the respondent or furnishing him with any opportunity of being heard, decided to suspend his route permit for a period of six months, at its meeting held on the 17th July 1964. The respondent tried to obtain redress against this order by an appeal to the Member, Board of Revenue, but failed. He then invoked the jurisdiction of the High Court under Article 98 of the Constitution, on the ground that the orders of the Regional Transport Authority and of Member, Board of Revenue, were wholly without any legal validity. The High Court took the view that upon the clear finding, given by the Magistrate, who tried the driver of the vehicle in question, it cannot reasonably be held that any of the conditions laid down in section 59 of the Motor Vehicles Act had been contravened. Hence the orders of the Regional Transport. Authority and of the Member, Board of Revenue, in appeal, were based on no legal evidence. The mere fact that the vehicle was involved in an accident, could, by itself, be no proof of the vehicle having been driven at a speed not authorised by any law. It appears that in the High Court the learned Additional: Advocate‑General had actually conceded that the orders of the Regional Transport Authority and of the Member, Board of Revenue, were unsupportable in view of an earlier decision of the same High Court in the case of Umra Khan and another v. Member, Board of Revenue, West Pakistan, Lahore and another (P L D 1965 Posh. 104). The orders were, accordingly, quashed but a certificate was ` granted to appeal to this Court under Article 58 (2) (a) of the Constitution, without specifying as to what, if any, question of law as to the interpretation of the Constitution was involved in `t this case. In our view, no question of the interpretation of any provision of the Constitution is at all involved in this case and it is regrettable that the High Court should have granted the certificate without either adverting to the provisions o Article 58 (2) (a), or specifying the questions of law relating t the interpretation of the Constitution, which arose for consideration. But since no objection was taken to the validity' of the certificate, we have dealt with the appeal on merits. The learned Advocate‑General, appearing in support of this appeal, has contended that under section 60 of the Motor Vehicles Act, 1939, the Transport Authority had been vested with the power to cancel or suspend a permit, upon, inter alla, any of the following grounds: (a) On the breach of any of the conditions specified in subsection (3) of section 59 or of any condition contained in the permit itself, or (b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit. Subsection (3) of section 59 provides:‑ "The following shall be conditions of every permit: (a). . . . . . . . . (b) that the vehicle or vehicles to which the permit relates are not driven at a speed exceeding the speed lawful under this Act." (Underlining is ours). (The other conditions specified in the subsection are not relevant for our present purposes and it is, therefore, unnecessary to quote them here). The argument of the learned Advocate‑General is that the speed at which the vehicle in question was being driven was not "lawful speed" under this Act. As to what is lawful speed under the Act, he has drawn our attention to subsection (1) of section 71, the Eighth Schedule appended to the Act and section

116. The relevant portions of these are also quoted below: Section 71. "Limits of Speed.‑(1) No person shall drive a motor vehicle or cause or allow a motor vehicle to be driven in any public place at a speed exceeding the maximum :peed fixed for the vehicle by or under this Act or by or under any law for the time being in forces Provided that such maximum speed shall in no case exceed the maximum fixed for the vehicle in the Eighth Schedule." "THE EIGHTH SCHEDULE Limits of Speed for Motor Vehicles Class of Vehicles Maximum speed Limit per hour Maximum Speed Per Hour.‑

1. Passenger vehicles, that is to say, vehicles constructed solely for the carriage of passengers and their effects‑ [Here in italic] vehicle is not drawing a trailer :‑ (i) . . . . . . (ii) if the vehicle is a public service vehicle other than a motor cab 30." Section 116. "Driving recklessly or dangerously.‑Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punishable on a first conviction for the offence with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, and for a subsequent offence if committed within three years of the commission of a previous similar offence with imprisonment for a term which nay extend to two years, or with fine which may extend to one thousand rupees, or with both." The learned Advocate‑General has contended that in ascertaining as to what is lawful or is not lawful under this Act, the entire Act has to be taken into consideration, and, as such, since section 116 provides that reckless or dangerous driving of a motor vehicle may occur even if the speed is not in excess of the limits prescribed by section 71 and the Eighth Schedule to the Act, the speed will be unlawful if "having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place," the vehicle Is driven at a speed or in a manner which is dangerous to the public. In the facts of the present case, it is pointed out, that even though, as found by the Magistrate and the Member, Board of Revenue, the vehicle was being driven at a speed between 20 and 30 miles per hour, which is below the maximum limit permissible under the Eighth Schedule, it was being driven in a reckless and dangerous manner, as the road had become slippery after the rain and there were tongas about on the road. The owner of the vehicle was, therefore, rightly held to be constructively liable for administrative action in the shape of suspension of his route permit, by reason of the violation of the condition of the permit under subsection (3) (b) of section 59 of the Act, i.e., the vehicle was driven at a speed in excess of the speed lawful under the Act. According to the learned Advocate‑General, the Transport Authorities being independent quasi judicial authorities were, in no way, bound by the findings of the Magistrate and were fully entitled under the Act to take simultaneous administrative action regardless of the finding of the Criminal Court. According to him, a distinction should be made between criminal offences and administrative punishments under the Motor Vehicles Act for the breach of conditions attached to route permits. The constructive liability to suspension on the route permit under section 60 of the Act does not, it is contended, depend upon the person who contravenes the condition but on the contravention of the condition simpliciter. It is not permissible, ha argues, to read into section 60 the analogy of the limits of criminal liability because, no such limits have been specified in the section itself. A permit can, therefore, according to him, be cancelled whenever a condition of the permit is broken, even though such breach may have resulted from the conduct of some person other than the owner of the vehicle, without his knowledge and contrary to his instructions. The fact, therefore, that the driver of the vehicle bad, in the present case, been discharged in the criminal prosecution launched against him, was immaterial and the High Court was clearly wrong in taking the view that because the driver had been discharged in the criminal prosecution the permit could not be cancelled or suspended. According to him, the earlier decision of the High Court in the case of Umara Khan and another was also incorrect inso far as it had purported to hold that in a case where the driver of the vehicle had been discharged or acquitted of the charge of rash and negligent driving, there could be no legal evidence for supporting the administrative action of cancellation or suspension of the route permit. In support of this contention the learned Advocate‑General has also quoted passages from two decisions of Indian High Courts in the cases of Malabar Roadway Service, Koshikode v. State of Madras (A I R 1955 Mad. 176) and Gopalakrishna Motor Transport Company Limited, Vijayawada and others v. Secretary, Regional Transport Authority, Krishna District, Vijayawada and others (A I R 1957 And. Prad. 882). In the Madras case, the conductor of the vehicle wag tried for the offence of over‑loading, but was acquitted on the technical ground that the prosecution had not proved by the production of the permit the sanctioned capacity of the vehicle. But, notwithstanding this acquittal, the route permit of the owner of the vehicle was suspended under section 60 of the Motor Vehicles Act, 1939, for over‑loading. This was challenged in the writ jurisdiction, but the High Court of Madras held that the action of the Transport Authorities was neither illegal nor void because there was no finding by the Magistrate in the criminal prosecution that there had been no over‑loading. In such circumstances it was held that it was open to the Transport Authorities, "if satisfied on the material before them, to hold that there had been over‑loading". In the Andhra Pradesh case, the vehicle which was owned by a limited liability Company, at the relevant time, under the control of the official liquidators was, upon a check being made, found to be over‑loaded. This over‑loading was admitted by the Company and, as such, its route permit was suspended for one month. The suspension was challenged on the ground that the checking of the vehicle was not in conformity with the instructions issued by the Government. The High Court, however, upheld the action of the authorities on the ground that over‑loading constituted a breach of one of the conditions of the permit and, therefore, the Regional Transport Authority was justified in its action. In the course of the arguments in this last cited case it was also urged that under the Motor Vehicles Act and the rules framed thereunder, the owner of the vehicle could not be made constructively liable for the transgression of a condition of a permit by a conductor or driver of the vehicle if the transgression was contrary to the express directions of the owner. In such circumstances, the Regional Transport Authority, it was contended, would not be exercising its discretion to take administrative action against the owner in a proper manner if it made him constructively liable. The High Court, however, held that under the scheme of the Motor Vehicles Act, the constructive liability of the owner depended not upon the person who had contravened the condition but only on the contravention of the condition, for, it is the duty of the owner to see that the condition is not contravened. If the condition is contravened, it is immaterial whether the agent of the owner does it of his own accord or with the permission of the owner. But it must be pointed out that in this very case, it was also observed that "section 60 (1) does not impose an automatic duty on the part of the Transport Authority to suspend or cancel a permit, if its condition is broken. It confers on them a duty to exercise discretion having regard to the facts of each case". It may also be mentioned here that in an earlier case subnomine Jerome D'Silva v. The Regional Transport Authority, South Kanara and another (A I R 1952 Mad. 853) the Madras High Court had itself held that where a Criminal Court had given a clear finding on merits, that finding would be binding on the Regional Transport Authority even in its administrative jurisdiction. In the case of Malabar Roadway Service, cited by the learned Advocate‑General, the above‑mentioned case was distinguished on the ground that where there was no positive finding by the criminal Court that an act constituting also a breach of a condition of the route permit had or had not been committed, the Transport Authority would be free to come to its own conclusion. From an examination of the provisions of the Motor Vehicles Act, it appears to us, however, that the Transport Authorities set up by the Act, have been constituted as Administrative Tribunals vested with the jurisdiction to take decisions of an administrative nature, within the limits prescribed by the Act and upon the grounds specified therein. It follows, therefore, that upon general principles which are now universally accepted, the authority empowered to take a decision has also a duty cast upon it to apply its own independent mind to the facts and circumstances of each case in the light of the relevant provisions of the law and then to come to its own decision, regardless of what another authority or tribunal acting in a different jurisdiction may or may not have held. But in doing so, it must act in accordance with the principles of natural justice and its decision must neither be fanciful nor arbitrary nor be based upon considerations extraneous to the statute under which it acts or upon such materials that nobody of reasonable persons could be expected to arrive at such a decision upon such materials. It is in this last respect, namely, of reasonableness that the decision of another tribunal may become relevant, if no additional fact or evidence is produced before the administrative authority. Thus, if in a prosecution, involving a transgression which also amounts to breach of the condition of a permit, a Criminal Court should have held that there is no evidence at all to warrant a conviction, then the question may well arise as to whether the authority under the Act can, upon the same facts and circumstances, reasonably come to a different conclusion. It is no doubt eminently desirable that the spectacle of to departments of Government proceeding in contradictory directions should be avoided and due weight and consideration ‑should be given to the findings of the Criminal Courts of the land which are entrusted with inquiries into offences, but this does not mean that the findings of one should be treated as conclusive by the other. Each has a duty to make up its own mind independently upon the materials placed before it but in a fair and reasonable manner without any taint of perversity arbitrariness. Applying this test to the facts of the present case, we have ‑no hesitation in saying that the decision of the Regional Transport Authority, in the facts of the present case, was wholly unreasonable, for, no additional material was placed before it and it came to the conclusion that the vehicle in question bad been driven at a speed exceeding the speed lawful under the Act, merely upon the fact that the vehicle had been involved in an accident which had resulted in the death of one of the passengers of the vehicle. This, by itself, was clearly not sufficient to establish that any breach of the conditions of the permit had been committed. It was clear that the vehicle was being admittedly driven at a speed which was well within the limit prescribed by 1 subsection (2) of section 71 and the Eighth Schedule of the Act. It collided with no other vehicle nor did it run over any pedestrian but skidded and turned over due to the slippery condition of the road. But the learned Advocate‑General has strenuously argued that the vehicle was, nevertheless, being driven recklessly or dangerously within the meaning of section 116 of the Act and, therefore, was also being driven at a speed exceeding the speed lawful under the Act. According to him the provisions of section 116 must be read into the conditions specified under subsection (3) of section 59, and whatever is punishable under the Act, must also be held to be unlawful. We are, however, unable to agree with this construction To establish a breach of the condition relating to driving "at a speed exceeding the speed lawful under this Act" it is not in our opinion, permissible to enlarge or curtail the legal limits of the speed prescribed under the Act by reference to the other offences created by the Act. The speed exceeding the speed lawful under the Act, in our opinion. means the speed which is in excess of the limits prescribed by the Act. Now what are the limits prescribed by the Act ? They have been set out specifically in section 71, subsection (1), which prescribes that a motor vehicle should not be driven in a public place at a speed "exceeding the maximum speed fixed for the vehicle by or under this Act or by or under any law for the time being in force," provided that such speed does not exceed the maximum fixed for the vehicle in the Eighth Schedule. The Eighth Schedule fixes the maximum limit, for the type of vehicle with which we are concerned in the present case, at 30 miles an hour. Therefore, the speed lawful under the Motor Vehicles Act, for a vehicle o this type, was 30 miles an hour and in order to constitute a breach of condition (b) under subsection (3) of section 59, the vehicle had, of necessity, to be driven at a speed to excess oft that maximum. Section 116 occurs in Chapter IX of the Act, which creates ; offences, provides for penalties for such offences and prescribes the procedure for the trial thereof, but it in no way controls the provisions of section

59. Section 116 is designed to make the offender personally liable. This section cannot be extended to make a person other than the offender vicariously or construc tively liable. The liability of the owner of a vehicle is independent of the liability of the person actually responsible for the commission of the offence, and is to be determined independently, upon the terms and conditions of the law creating that liability. For these reasons we have come to the conclusion that the High Court was right in holding that. in the facts of the presents case, the action of the Regional Transport Authority was clearly without lawful authority, for, there was no breach of either or 1~ any of the conditions prescribed by subsection (3) of section 59 or of any of the conditions of the permit. It has to be mentioned l, here that no attempt whatsoever, was made to show that there were any other conditions mentioned in the permit itself which could be said to have been violated. This appeal is accordingly dismissed, but having regard to the fact that it has come before this Court upon a certificate granted under misconception of law, we make no order as to costs. A. H. Appeal dismissed