P L D 1967 Lahore 870 (PLP)

MUHAMMAD AFZAL CHEEMA, J.‑This petition under Article 98 of the Constitution filed by Gujrat‑Punjab Bus Group (A) Limited, Gujrat, calls in question the legality of the two orders of the Chairman, Regional Transport Authority, Rawalpindi dated the 15th of June 1966 (Annexure 'A'), and 18th August 1966, (Annexure 'C'), each granting two temporary route permits to respondent No. 2, on Gujrat‑Tanda via Jalalpur Jattan Route. The operation of the order with regard to two permits granted on 15th of June 1966, was suspended by an order of this Court dated the 6th of July 1966, when the present petition was admitted. Subsequently, however, a fresh decision was taken by the Regional Transport Authority on 18th of August 1966, again granting two temporary permits in favour of respondent No.

2. Consequently, the petitioner applied for an amendment of the writ petition vide Civil Miscellaneous No. 3 of 1966, and also moved for the suspension of the newly‑granted permits vide Civil Miscellaneous No. 4 of 1966, which were allowed. These permits were granted for a period of four months and are going to expire on the 17th of December 1966, but nevertheless, the petitioners have thought fit to press the petition partly for obtaining an adjudication on the legal issues involved and partly because of the fact that the grant of a temporary permit is often deemed to be an additional qualification and a stepping stone for the grant of a permanent permit on the game route.

3. The learned counsel for the petitioners raised the following contentions before us: (1) that the traffic requirements of the route in question on which the petitioners are existing operators holding two `B' part permits do not justify additional permits; (2) that the Regional Transport Authority had not carried out a survey to assess the traffic requirements on the route; (3) that the Regional Transport Authority and not the Chairman was competent to grant the temporary permits as no applications had yet been invited for the grant of permanent permits on the route in question; (4) that none of the conditions enumerated in the relevant Ordinance in section 64 were fulfilled so as to justify the grant of permits; and (5) that at any rate section 64 of the Ordinance was governed by section 49, which provided for an opportunity to the existing operator to object to such a grant which was denied to the petitioners in the instant case.

4. The learned counsel appearing on behalf of respondent No. 2, frankly conceded that he could not defend the legality of the first impugned order of 15th June 1966, but while resisting the petition regarding the subsequent order of 18th August 1966, raised a preliminary objection regarding the competence of the writ petition on the ground that available remedy of appeal had not been exhausted by the petitioner before invoking the writ jurisdiction. On facts it was asserted that the Chairman was competent to grant the temporary permit in question under clause (d) of subsection (1) of section 64 of the Ordinance, inasmuch as applications for the grant of permanent permits on the route in question had already been invited and were pending before the Regional Transport Authority which had delegated its powers of issuing the temporary permits to the Chairman under subsection (2) of section 64 of the Ordinance. It was next argued that the temporary permits though being permits in terms of the definition contained in section 2 (25) of the Ordinance, were in the very nature of things essentially different from permanent permits, and that in order to meet an emergent and immediate necessity a special provision had been made in this regard under section 64 dispensing with the normal procedure laid down in section 59, entailing considerable expense of time, and that provisions contained in section 64 of the Ordinance were quite independent of those contained in section 49 of the Ordinance, which only laid down the general principles to be kept in view by the Regional Transport Authority, while granting or refusing a stage carriage permit.

5. Before discussing the various contentions raised by the learned counsel for the petitioners, we have no hestitation in saying that the preliminary objection of the learned counsel for the respondent must prevail. No doubt, there has been some confusion in the past as to the appealability of order; relating to the grant of temporary permits and the Members, Board of Revenue, functioning as appellate authority have been summarily dismissing sonic of the appeals on the ground of incompetence, but this question has been determined by a Division Bench authority of this, Court in Wahid Bus and Mailsi Transport Co. Lid. v. Afzal Transport Co. Ltd., Multan (P L D 1966 Lah. 684) to which one of us was a party. It was held that an order relating to the grant of temporary permits was as much amenable to appeal as an order relating to grant of permanent permits. This judgment was delivered on the 25th of April 1966, and was obviously in the field when the cause of action arose to the petitioners. In the circumstances, we agree with the learned counsel for the respon dent that the petitioners have not exhausted the available remedy of appeal before coming to this Court and on this score alone, the petition merits dismissal.

6. However, even on merits, the petitioner's case stands on no better footing. The learned counsel for the respondent produced before us a certified copy of an extract from the minutes of the meeting of the Regional Transport Authority, Rawalpindi, held on the 26th and 27th of July 1966, to show that before declaring the route open, it had satisfied itself regarding the inadequacy of existing transport facilities on the route in question after obtaining a survey report. The extract is reproduced below: "Item No. II. (XXII). Gujrat‑Tanda via Jalalpur Jaltan.‑The survey report of the Secretary, R. T. A. Rawalpindi was considered by the Authority, only G. T. S. objected on the ground that the number of return services already running on this route were adequate and the R. T. C. would be put to great financial loss, if more services were allowed. The Authority decided to declare this route open for the grant of four B' parts." He then drew our attention to the impugned order itself whereby having referred to the urgency for the provision of additional traffic facilities on the route in question, the Chairman, Regional Transport Authority in exercise of his delegated powers had granted the two impugned routes to the respondent. The factual position thus stands fully established that a survey had been conducted to assess the transport requirements on the route on which applications for grant of permits had already been invited and that, in the circumstances, the Chairman was competent to grant the impugned permits in exercise of the powers delegated to, him by the Regional Transport Authority, thus fulfilling the requirements of sections 50 and 64(1)(d) and (2) of the Ordinance. This washes off the first four contentions raised by the learned counsel for the petitioners.

7. As regards the legal issue that section 64 was governed by and subject to section 49 of the Ordinance, which clearly provided for the invitation of representations and their disposal, reliance was placed on The Ambala Ex‑Servicemen Transport Co‑operative Society, Ltd. v. The State of Punjab and others (A I R 1959 Punj. 1), and Wahid Bus and Mailsi Transport Co., Ltd. v. Afzal Transport Co., referred to earlier. In the first mentioned authority, the petitioners challenged the grant of public carrier permits in favour of the respondents, and no doubt, the view taken by the learned Judges seems to be that the relevant section 62 of the Motor Vehicles Act was controlled by the provisions of sections 55 and 56, corresponding to the provisions of sections 47 and 48 of the Motor Vehicles Act, which related to the grant of stage- carriage permits and are comparable to sections 49 and 50 of the Motor Vehicles Ordinance. But in spite of this, one cannot lose sight of the very significant and clear provision of law, whereby the procedure contained in section 57 of the Act corresponding to section 59 of the Ordinance has been dispensed with in the case of temporary permits. Section 49 of the Ordinance only lays down the general principles and the relevant considerations which the Regional Transport Authority has to bear in mind while granting or refusing a stage‑carriage permit. Section 59 deals with the procedure commencing with the making of an applica tion, and lays down the schedule of their publication in the prescribed manner, the invitation of representations and their consideration, etc. It would be pertinent to point out that three subsections (4), (5) and (6) relate to representations whose consideration is invariably the main hurdle in the disposal of applications which are delayed simply on this account. Since in the very nature of things a temporary permit is granted to meet a special transport requirement of an urgent nature, it only stands to reason that in order to take an expeditious decision to meet such a situation, the normal procedure should be dispensed with. Since the provisions relating to objections is also mentioned in section 49, the only logical conclusion that could be drawn would be that the provisions relating to the filing of objections have no room in the procedure for the grant of temporary permits and must be obviated and for good reasons too. As stated earlier, section 49 lays down only the guiding principles, whereas section 59 lays down the detailed procedure. As such, the specific provisions of the latter section must prevail. If, however, as contended by the learned counsel for the petitioners, in spite of the suspension of section 59 in the case of temporary permits, section 64 would still remain subject to section 49, insisting on the invitation of representations and their disposal, the whole object of the grant of temporary permits as envisaged by section 64 would be defeated.

8. Coming now to the second authority relied upon by the learned counsel for the petitioners, namely, Wahid Bus and Mailsi Transport Co. Ltd. v. .9fzal Transport Co. Ltd. the same is not helpful to him either, as would be clear from the following observation contained in paragraph 19 of the judgment:‑ "No doubt, the provision relates to special circumstances and appears to be quite independent of the foregoing provisions dispensing at the same time with the procedure laid down for permits other than temporary, but the exemption relates only to the procedure laid down in section 59, and to none other. In the absence of any inconsistency or absurdity it would be wrong to infer the non‑applicability of other procedural provisions." It needs hardly any argument to show that instead of leading any support to the contention raised by the learned counsel, it cuts across his argument, and we have been only too consistent in reiterating this position in the early part of this judgment.

9. Our attention was also drawn to an order passed by a Division Bench of this Court in writ petition No. 631 of 1964, suspending the operation of two temporary permits. It was observed by their Lordships as follows: "There appears to be prima facie force in the contention that the Chairman as delegate exceeded his power in granting the temporary permits." Besides proceedings on entirely different facts this was an ad -interim order and by no means indicative of the final adjudication of the point involved and as such is both irrelevant as well as devoid of any persuasive force.

10. The next authority relied upon by the learned counsel was an unreported Division Bench judgment of this Court in Writ Petition No. 1194 of 1963. In this case the petition filed by Messrs Gujrat‑Punjab Bus Limited. Gujrat calling in question the validity of a similar order of the Chairman, Regional Transport Authority whereby he granted two temporary permits to the respondent was accepted by the learned Judges. Having carefully gone through the judgment, we are quite clear in our mind that this judgment too proceeds on entirely different facts and has no relevancy to the instant case. In its meeting held on the 12th, 13th and 16th of August, 1963, the Regional Transport Authority, Rawalpindi, not being enamoured of the exclusive monopoly of some transporters on certain routes decided to throw them open. To quote the decision: "The Authority, however, considered that before proceeding further in the matter that a survey should be carried out to assess the adequacy or otherwise of the existing transport facilities on these routes in public interest." In the same meeting the Regional Transport Authority delegated its powers to the Chairman, to grant temporary route permits under section 62 of the Motor Vehicles Act, in pursuance of which the latter granted the impugned temporary permits on the pretext that "there was immediate need for introducing additional transport facilities. In the same order, the Chairman directed that "survey be ordered simultaneously for declaring these routes for permanent relief". The learned Judges took the view that the procedure adopted by the Chairman cut across the decision of the Regional Transport Authority which made the conduct of the survey a condition precedent for proceeding further in the matter. Furthermore, in the circumstances of the case their Lordships were not persuaded to agree with the Chairman that there was sufficient material before him to establish existence of a genuine necessity and thereby justifying the issuance of the permits under clause (c) of section 62 "to meet a particular temporary need". Thus the authority being obviously distinguishable does not advance the case of the petitioner. 10‑A. Having carefully gone through Yusuf Ali v. Muhammad Aslam Zia (P L D 1958 S C (Pak.) 104) and Ikram Bus Service v. Board of Revenue (P L D 1958 S C (Pak.) 104), the two authorities next cited by the learned counsel in support of his contention, we were equally at a loss to locate anything therein which could be helpful to him. Surprisingly enough, the former authority deals with the allotment of a building owned by a local landlord, but in occupation of an evacuee lessee, and does not appear to have the remotest bearing on the instant case. In the latter authority, wholly different issues were raised before their Lordships of the Supreme Court, and it was ruled by their Lordships as follows: "(i) By insisting that the recipients of permits should only be limited companies, the R. T. A. were introducing a classification among the applicants, for which there was no warrant in any provision of the Act. The Act contemplates due consideration of applicants whether individuals or companies, on their merits. Here, however, the R. T. A. acting on their pre‑conceived notion and following what was regarded as a matter of policy laid down by Government, declined absolutely to give considera tion on the merits to any application by any individual transporter, for a permit. This was introducing a new criterion for judging the suitability of an applicant contrary to the provisions of section 47 of the Act. (ii) Even an administrative body such as an R. T. A. is under legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body should determine the matter with whose decision it is charged, in accordance with the law. (iii) The Regional Transport Authorities are autonomous bodies which have to function as such under the provisions of the Act. They cannot act merely as agents to Government and import considerations extraneous to the Act in deciding applications for permits. (iv) If a person is granted a permit without' an application it means that the whole of this procedure (sections 46, 47 and 57) has been omitted In respect of that person. No grant of permit without substantial compliance with section 47 can be valid." If, however, the learned counsel wanted to emphasise that the R. T. A. in spite of being an administrative tribunal was under a legal obligation to determine the matter in accordance with law, we have not been able to see any relevancy to press this rule into service in the instant case inasmuch as, the survey had already been carried out, the powers were delegated to the Chairman, and applications for permanent permits were already pending. In the circumstances, we see nothing with the impugned order whereby temporary permits were granted to meet an immediate requirement of the travelling public of the area before the disposal of the applications for the grant of permanent permits.

11. For the foregoing reasons, we see no force in the petition which is hereby dismissed with costs. K. M. A. Petition dismissed.