2017 PLP 776 (CLC)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal by leave of the Court is filed against the judgment of the High Court dated 10.6.2005 whereby while accepting the writ petition filed by real respondents, the notifications issued by the Minister for Transport, respondent No.15, in favour of the appellant and proforma-respondents Nos.9 to 11 were cancelled, previously, in this appeal, judgment was announced on 29th March, 2012, however, due to clerical mistake of the concerned official, name of one of the members of bench, who had not heard the case, was typed and got signed hence, while accepting the review petition, the judgment has been recalled and now this appeal shall be disposed off through the fresh judgment.

2. The facts necessary for disposal of appeal are that proforma-respondent No.15, the Minister for Transport, issued four notifications on 13.5.2003 whereby route permits for motor vehicles in favour of the appellant and proforma-respondents Nos.9 to 11 were issued. The real-respondents herein, feeling aggrieved, filed a writ petition to challenge the validity of the notifications. It was averred in the writ petitions that they are also running the transport business and their main grievance is that the proforma-respondent No.15, has no jurisdiction to issue route permits, hence, all the route permits have been issued in sheer violation of the statutory provisions. The writ petition was resisted by other side. After necessary proceedings, the learned High Court through the impugned judgment, while accepting the writ petition, cancelled the route permit issued in favour of the appellant and proforma-respondents Nos.9 to

11. The appellant has challenged the validity of the judgment of High Court through the instant appeal before this Court.

3. Mr. Khalid Rashid Chaudhary Advocate, the learned counsel for the appellant, reiterated the grounds of appeal and submitted that the impugned judgment is result of misconception of law and facts. He submitted that there is difference in procedure for granting the route permit for stage carriage and contract carriage. The writ petition has been filed in presence of alternate adequate remedy as provided under the Azad Jammu and Kashmir Motor Vehicles Ordinance, 1971 (hereinafter to be referred as Motor Vehicles Ordinance), and rules made thereunder. He further submitted that for granting the permit of contract carriage, there is no requirement for conducting survey or other formalities only the reports of Administrative Authorities suffice. His most stressed argument is that the notification of delegation of powers to Minister for Transport dated 18.1.2003 has not been challenged, therefore the writ petition was not maintainable. The petitioners, before the High Court do not fall within the definition of aggrieved person. He relied upon the case reported as M/S Ashraf and Akbar and another v. Kh. Abdul Khaliq and others, (1995 SCR 196) in support of his contentions.

4. Conversely, Mr. Farooq Hussain Kashmiri Advocate, the learned counsel for respondents while refuting the arguments of counsel for the appellant submitted that the impugned judgment is well reasoned and consistent with the statutory provisions as well as principle of law laid down by the superior Courts. He further submitted that the Minister for Transport has got no authority to directly issue the route permits for motor vehicles. He further submitted that although the Minister concerned has been delegated the powers vested in the Government under section 50(1)(b) of Motor Vehicles Ordinance, but delegation of these powers does not authorize the Minister to issue the route permits. He further submitted that the arguments of learned counsel for the appellant regarding validity of alternate adequate remedy of appeal is misconceived. According to his version, against the order passed by Minister, no remedy is provided by law. He further contended that it is not settled principle of law that for maintaining a writ petition, it not necessary that one should have a right in strict juristic sense, if any person has any interest in the matter or in application of law, he can be termed as an aggrieved person. He finally submitted that the appeal being without any substance, merits dismissal.

5. We have considered the respective arguments of the learned counsel for the parties and also gone through the record made available. In our opinion, the moot point in this case is whether the Minister for Transport is empowered to grant the route permits. Admittedly, vide notification dated 18.1.2003, the Government delegated the powers vested in it to the Minister for Transport. For convenience, the notification is reproduced as under:- This notification refers that the Government has delegated powers vested in it under the provisions of section 50(1)(b) of Motor Vehicles Ordinance. It will be appropriate to reproduce here the relevant provisions of Ordinance, which reads as follows:-

50. Power to restrict the number of stage carriage and impose conditions on stage carriage permits:- (1) The provincial or a Regional Transport Authority shall; (a) have a thorough survey carried out; in such manner and at such times as may be prescribed by rules made by Government, of the road passenger and transport services in the province or the region in which it exercises jurisdiction; (b) fix the number of stage carriages or stage carriages of any specified type for which stage carriage permits may be granted in region or in any specified area or in any specified route within the region; Provided that the Government may, whenever deemed necessary, order Azad Kashmir Transport Authority to introduce any new routes, or any number of additional permits for a existing route and grant the same to any particular party or the parties. 2. 3. (underlining is ours) This section deals with the powers of provincial or regional transport authority in relation to stage carriage permits. The proviso attached to subsection (1)(b) of this section clearly speaks that in case of necessary, the Government shall order the Azad Jammu and Kashmir Transport Authority to introduce any new routes, or any number of additional permits for existing route and grant the same to any particular party or the parties. According to the celebrated principle of law, a delegatee cannot go beyond the powers delegated to him nor the delegator can delegate the powers which are not vested in him. Thus, it is clear under the notification dated 18.1.2003 that the Minister for transport is delegated the powers of the Government vested in it under the proviso to section 50(1)(b) of the Motor Vehicles Ordinance. While exercising these powers, the Minister is only authorized to order the Azad Jammu and Kashmir Transport Authority for introduction of new routes or any number of additional permits for existing route of stage carriage and granting the same to any particular party or parties, but he cannot directly sanction the route permits himself or under the garb of this notification grant sanction for contract carriage permits.

6. The main grievance as incorporated in ground (ii) of the memo. of writ petition is that the disputed route permits have been issued without lawful authority. The recital of the statutory provision along with notification of delegation of powers makes it clear that neither the provision of section 50 deals with the matter of contract carriage permits nor any powers in relation to contract carriage permits have been delegated to the Minister. While interpreting the scope of above referred proviso, to subsection (1) of section 50 of Motor Vehicle Ordinance, this Court in M/s Ashraf and Akbar and another's case [1995 SCR 196], held as under:- "Mr. Muhammad Azam Khan contended that proviso under examination is attached to clause (b) only and not clause (a) of subsection (1) of section

50. We do not think that is correct. The proviso is in fact attached to subsection (1) as a whole. We notice that the whole of subsection (1) consists of one sentence. The sentence begins with the words "The provisional or Regional Transport Authority shall " and ends with the words ".... to any particular parties." In the whole subsection there is only full stop which is at the end of the proviso. In between there is a dash, a semicolon and a colon but no full stop." In the referred case, the principle of law has rightly been laid down that the proviso is attached to both clauses (a) and (b) of subsection (1) of section 50, which deals with the matter of stage carriage permits. Whereas the route permits issued in favour of the appellant and proforma-respondents are not of stage carriage but are of contract carriages. According to the scheme of law, sections 48 to 50 of Motor Vehicle Ordinance deal with the stage carriage permits whereas sections 51 to 53 deal with contract carriage permits. The appellant and proforma-respondents claimed that they have been granted contract carriage permits and in support of their version they have placed on record the copies of the contract carriage permits issued in furtherance of the notified orders of the Minister for Transport. Thus, it would be needless to discuss the other details of the matter because the powers delegated to the Minister under section 50(1)(b), relate to stage carriage and he has nothing to do with the contract carriage route permits. Therefore, it can be safely held that in exercising the delegated powers under section 50(1)(b) of Motor Vehicles Ordinance, the Minister for Transport has no authority to sanction or order for granting contract carriage permits to any particular party or parties. It has been rightly held by the High Court that the route permits issued in favour of the appellant and proforma-respondents are issued without lawful authority. The other aspect of the case that the petitioners in the High Court were not aggrieved persons, appears to be result of misconception. The petitioners in writ petition specifically averred that they are conducting the transport business in the area. The appellant and proforma-respondents Nos.9 to 11, in their written statement, have admitted that the petitioners are running the transport business but they are the bus owners and stage carriage permits holder, thus, they have no concern with the contract carriage route permits. In view of these facts, it cannot be said that the respondents are not aggrieved persons or they have no interest in the subject matter. This Court while attending the question of aggrieved person in a case titled Muhammad Chacha v. Azad Government and 4 others [2006 SCR 232], enunciated the principle of law as following:- "The aforesaid reports clearly contain that for proving himself as an aggrieved person it is not necessary that a person should have a strict juristic right but if his interests are liable to be jeopardized or he has some interests then he can be termed as aggrieved person."

8. Another objection raised by the learned counsel for the appellant that the writ petition in presence of alternate remedy is not competent, also appears to be without any substance. In the light of the peculiar facts of this case, the Minister for Transport has issued route permits of contract carriage while exercising powers under section 50(1)(b) of Motor Vehicles Ordinance against such like orders no alternate, efficacious or adequate remedy is provided by law. The learned counsel for the appellant, in his arguments has mainly stressed that under the provisions of section 66 of the Azad Jammu and Kashmir Motor Vehicle Ordinance, 1971, alternate, and efficacious remedy of appeal is available. In our view, the argument of learned counsel for the appellant is result of some misconception of facts and law. Section 66 of the Ordinance, 1971 is reproduced as under:- "

66. Appeals.- (1) Any person

(a) aggrieved by the refusal of the Provincial or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or (b) aggrieved by the cancellation or suspension of the permit or by any variation of the conditions thereof, or (c) aggrieved by the refusal to transfer the permit to the person succeeding on the death of the holder of a permit to the possession of the vehicles covered by the permit, or (d) aggrieved by the refusal of the Provincial or a Regional Transport Authority to countersign a permit, or by any condition attached to such countersignature, or (e) Aggrieved by the refusal to renew a permit, or (f) Being a local authority or police authority or an association which, or a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto, or (g) Being the holder of a licence, who is aggrieved by the refusal of a Regional Transport Authority to grant an authorization 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 inconsistent 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 to determine; or (b) 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." A perusal of the provisions of this section reveals that against the order of Provincial or Regional Transport Authority, remedy of appeal is available. The Provincial and Regional Transport Authorities are constituted under section 46 of the Ordinance, 1971, by the Government. Whereas in the case in hand, no order, proceedings or any act of Provincial or Regional Transport Authority is called in question. Rather the controversy relates to the notification issued by the Minister Transport of AJ&K Government who is neither the Provincial nor the Regional Transport Authority. In view of the peculiar facts of this case, the only remedy available to the respondent-petitioner was to approach the High Court for exercising the powers in extraordinary writ jurisdiction which has been rightly exercised.

9. The other objection raised by the learned counsel for the appellant that the notification dated 18.1.2003, with regard to the delegation of powers to the Minister by the Government has not been challenged, thus, the writ petition was not maintainable is also not acceptable. Under the said notification, the powers which have been delegated to the Minister for Transport relate to stage carriage, whereas while misconstruing the powers he has sanctioned contract carriage permits, thus, there was no necessity to challenge the notification of delegation of powers. For the reasons stated hereinabove, we don't find any illegality in the impugned judgment of the High Court, which is consistent with spirit of law, therefore, finding no force in this appeal, the same is hereby dismissed with no order as to costs. ZC/14/SC(AJ&K) Appeal dismissed.