P L D 1963 Supreme Court 564 (PLP)

CORNELIUS, C. J.‑I agree with my learned brothers that this appeal should be allowed, and the appellants should be allowed their costs. I agree generally with the views expressed in the judgments delivered, and in particular with the argument in the judgment of my learned brother, Hamoodur Rahman, J. S. A. RAHMAN, J.‑This is an appeal by special leave directed against an order passed by a Member of the Board of Revenue, West Pakistan, Lahore, as the Appellate Authority, under the Motor Vehicles Act, 1939. The relevant facts are as follows :‑ By a notice dated the 10th of March 1960, inserted in the weekly "Driver", the Regional Transport Authority, Peshawar, invited applications for stage carriage permits for the Naushera- Mardan‑Swabi‑Topi route. The appellants were among the several persons who applied for permits on this route along with certain other persons who are now shareholders of the third respondent, the Ittehad Transport Services Co. Ltd. There were in all some 42 permit holders already plying vehicles on this route, some of the permits being held by the appellants. Each applicant deposited Rs. 100 as fee into the Treasury for entertainment of the application by the R. T. A. Hearing of the petitions was fixed for the 18th and the 19th of November 1960, by a notice. Purporting to follow certain instructions by the Provincial Government, the R. T. A. declared that they would only grant permits to the petitioners if they formed public limited companies, The order passed by the R. T. A. is in these terms :‑ "Considered in the light of instructions on the subject from Provincial Government and the applicants asked to consider formation of limited company/companies instead of asking for individual permits. They requested for time and therefore directed to appear again on 10‑12‑60 at Peshawar (this office)". A meeting was held by the bus owners of District Mardan and Malakand Agency, on 29‑11‑60, to consider the situation and a resolution was passed by them in which it was pointed out that the requirement to form limited companies was absolutely contrary to the advertisement. It was requested that permits should issue in accordance with the law and that if it was intended to confine permits to limited companies then a definite advertisement to that effect should be made and the pending applications together with the fees deposited, should be returned to the respective applicants. If this request was not granted, right to take legal action was reserved. A copy of the resolution was forwarded to the R. T. A. and individual objections to the proposed course were also taken in separate applications by some of the applicants for permits. The matter again came up for consideration before the R. T. A. on 13‑12‑60 when the following decision was recorded:‑ "Reference item No. 20 of the agenda of the last meeting About 40 applicants have come forward end have formed a company known by the name of Ittehad Transport Service Company Limited, Mardan. They have duly registered it and will produce certificate. The R. T. A. has decided to issue them ten route permits now for this (Naushera‑Mardan‑Swabi‑Topi) route. The appli cations of those who have not joined the company stand rejected because their individual applications cannot be con sidered in the light of the Government instructions which favour formation of companies". It is interesting to note that out of the members of the new company seven or eight were not applicants before the R. T. A. at all. It also appears that the company in question was actually incorporated on the 14th day of December 1960, though the order issuing them permits was passed a day earlier. Against the order of the R. T. A. an appeal was taken to the prescribed Appellate Authority, namely, a Member of the Board of Revenue, West Pakistan at Lahore. In the grounds of appeal it was pointed out that the appellants and others had objected to the procedure which was being adopted by the R. T. A. in violation of the provisions of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act). It was contended that it was no part of the statutory functions of the R. T. A. to form limited companies and they requested for the decision of their applications on merits. It was moreover urged that the Ittehad Transport Service Company Ltd. as such, was not an applicant before the R. T. A., that no application by it had ever been published as required by law and no opportunity had been afforded to other transporters for objecting to the grant of permits to it. The action of the R. T. A. was challenged as contrary to law in so far as it had declined to consider the applications of the appellants on their merits as individuals. The condition precedent imposed on the applicants to form companies before they could be considered for permits; was attached as ultra vires the Act. This appeal was presented by five parties who are now the appellants before us. The learned Appellate Authority after recounting the history of the case made the following observations "The main point urged is that even if the legal objections are not put forward viz. that new company was not an applicant and had not been incorporated till a day after the decision of the Regional Transport Authority, on merits too, the issue of the permits to the respondent is not justified. The respon dent company have during this period of four months, so far, obtained only four vehicles and have been able to place an order for two more. It was therefore urged that the number of permits issued to the respondent be restricted at the most to six. As regards the remaining four permits, the persons who originally applied, including the five appellants, and who are not included in the respondent company, may be given some time to form a limited liability company and the permits may be granted to them. This is an eminently reasonable suggestion which the Secretary, Regional Transport Authority, Peshawar, also accepts. I would, accordingly, accept the appeal to the above extent i.e., reduce the number of permits in favour of respondent No. 2 to six, give a period of three months to the appellants and the remaining original applicants to form a limited liability company and in case they do so the R. T. A. will grant them the remaining four permits." A writ petition was moved in the High Court of West Pakistan by which this order of the learned Member of the Board of Revenue was assailed but a Bench of two learned Judges of the High Court declined to interfere even if there had been some departure from the rules framed under the Act for the grant of permits, as they regarded the impugned order to be passed in the interest of the public and as it had received partly the consent of the petitioners. Leave to appeal was granted by this Court by order dated the 7th June 1961, directly from the order of the Appellate Authority. The questions that arose for consideration were whether the R. T. A. had declined to function under the Act and to do their statutory duty independently, whether the Government A had the statutory power to issue the instructions that they did and whether they could have been validly followed. At that time a direct appeal could be entertained from an order of the Appellate Authority, under the old Constitution. Our attention was invited to Annexure RI at page 15 of the concise statement of the appellants, which is a letter dated the 26th April 1960, issued by the Provincial Transport Authority, West Pakistan, to Secretaries of all Regional Transport Authorities in West Pakistan, enclosing a copy of a letter from the Deputy Secretary to Government of West Pakistan, Planning and Deve lopment Department, Lahore, addressed inter alia to the Deputy Secretary, Planning Commission, Government of Pakistan, Karachi. This sets out "decisions" of the Provincial Government in respect of the activities of the Transport Board during the five year plan. One of the "decisions" in question is stated in the following terms:

"In future no route permits should be given to an individual but to a public limited company with a paid‑up capital of Rs. 20 lacs and a capacity of at least 20 vehicles under operation. This limited company has to agree to setting up of workshop and bus‑stands and to providing other amenities." The Provincial Transport Authority added in their own letter, for the information of all Secretaries of R. T. As., that necessary amendments to the Motor Vehicles Act had since been suggested to Government, in order to give practical shape to the decisions taken. On its face it would seem therefore that even the Provincial Transport Authority realized that the decisions could not be enforced without amendment of the law. It was argued on behalf of the respondents that one of the functions assigned to a Provincial Transport Authority under subsection (3) of section 44 of the Act was to co‑ordinate policies of the R. T. As. and for that purpose, under sub section (4) of this section, the Provincial Transport Authority was authorized, subject to such conditions as may be prescribed, to issue directions for the guidance of the R. T. As. The instruc tions bearing on the issue of permits to limited liability companies only, in the future, were sought to be related to these powers. A regulatory and supervisory authority of this kind however cannot be equated with power to impose conditions on the grant of permits not contemplated by the Act. There is no express provision in the Act or the Rules, specifically conferring powers on Government or the Provincial Transport Authority f to issue instructions of the kind that are under consideration in the instant case. The real question that falls for determination therefore is whether the imposition of the impugned condition had the sanction of the Act or not. Section 47 of the Act specifies the matters which a Regional Transport Authority shall have regard to, while deciding whether to grant or refuse a stage carriage permit. Those matters are categorized as the interest of the public generally, the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken; the adequacy of existing road passenger transport services between the places to be served, the fares charged for those services and the effect upon those services of the service proposed ; the benefit to any particular locality or localities likely to be afforded by the service; the operation by the applicant of other transport services and in particular of un remunerative services in conjunction with remunerative services; and the condition of the roads included in the proposed route permits and any representations made by persons already providing road transport facilities along or near the proposed route or routes or by any local authority or police authority within whose jurisdiction any part of the proposed route or routes lies or by any association interested in the provision of road transport facilities. Section 48 of the Act inter alia empowers a Regional Transport Authority after consideration of the matter set forth in subsection (1) of section 47, to limit the number of stage carriages or stage carriages of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region; or issue a stage carriage permit in respect of a particular stage carriage or a particular service of stage carriages; to regulate timings of arrival or departure of stage carriages whether they belong to a single or more owners; and otherwise to regulate the services to be provided to the public by the operators by imposition of con ditions which need not be detailed. Section 57 prescribes the procedure in respect of applications for permits. It requires that an application for a stage carriage permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or, if the R. T. A. appoints dates for the receipt of such applications, on such dates. On receipt of an application for stage carriage permit, the Regional Transport Authority is placed under a duty to make the application available for inspection at the office of the Authority and to publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date not being less than thirty days from such publication on which and the time and place at which, the application and any representation received will be considered. It is further provided that no representation in connection with an application for a permit shall be considered by the R. T. A. unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such a representation. The hearing before the R. T. A. is to be a public one and the parties interested are to be heard either in person or by a duly authorized representative. In case the R. T. A. refuses an application for a permit it is incumbent on it to give to the applicant, in writing, its reasons for the refusal. Section 5 lays an embargo on the transfer of a permit from one person to another except with the permission of the Transport Authority who granted it. This section also lays down certain conditions of every permit, failure to comply with which, may entail a penalty of cancellation or suspension of the permit under section 6,J (I). It is to be noted that on the publication of the applicants' applications for permits no objection was raised from any quarter that individuals should not be granted permits or that such a privilege should be conferred on limited companies only. There was no limited company among the applicants at all. It was suggested that the appellants were precluded from challenging the order passed in appeal by the learned Member of the Board of Revenue on the ground that it was passed with their consent. This does not appear to be correct. The legal objections to the procedure adopted by the R. T. A. were pressed before the learned Member and it was only in the alternative that a suggestion was made that some of the permits of the limited company be cancelled and reserved for another company to be formed. There is nothing in the order of the Appellate: Authority to indicate that the appellants had personally assented thereto. The suggestion seems to have emanated from learned counsel and was apparently seized upon as cutting the Godian knot. However, there was certainly no estoppel against the statute and if the R. T. A.' s action was wholly beyond the purview of the Act it could not be sustained. 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 consideration 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. It is true that this Court held in the case of the Tariq Transport Company v. Sargodha‑Bhera Bus Service (P L D 1958 S C (Pak.) 437) that Regional Transport Authorities are administrative bodies and they are not supposed to act judicially or quasi judicially while deciding the question of permits to ply vehicles on public roads. The interest of the public is their guiding factor in such matters and there cannot be said to exist a proper lis before them and applicants have no legal right to the grant of a permit. But it was ruled at the same time that judicial review by superior Courts of the impugned action, would be possible in writ jurisdiction if an allegation of excess or lack of jurisdiction was made out, though such jurisdiction could not be invoked for mere irregularities in procedure if they did not amount to a denial of a fair hearing or did not cause prejudice to an applicant. By its refusal to consider the applications of individuals as contrasted with those of limited companies, the R. T. A. was clearly in this case legislating in so far as it was introducing extraneous considerations as determinative of the eligibility of applicants for permits, contrary to the provisions of the Act. To this extent it clearly exceeded its jurisdiction and attracted the superior Courts' power of judicial review. If a proper, hearing had been given on the merits to all applicants when the individuals or companies and then preference had bee expressed on the merits for a company appearing before the R. T. A. as an applicant as against individuals, perhaps no objection could have been taken to the course adopted. It was so held by this Court in Muhammad Hanif v. Provincial Transport Authority (P L D 1958 S C (Pak.) 571). But the circumstances here are completely different. The R. T. A. had completely closed its mind before hand to the consideration of merits of individual applicants. In the circumstances it is idle to argue as was sought to be done on behalf of the respondents that the applicants had been given a hearing. Such a hearing was a complete farce in the eye of law when after a formal notice to appear, the applicants were told categorically that their applications would receive no consideration merely on the ground that they were presented by individuals. 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 E the administrative body should determine the matter with whose decision it is charged, in accordance with the law. Reference in this connection may be made to a Division Bench authority of the High Court of West Pakistan reported as Montgomery Floor and General Mills Ltd. v. Director, Food Purchases (P L D 1957 Lah. 914). The procedure adopted by the R. T. A. departed materially from this criterion. 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 F considerations extraneous to the Act in deciding applications for permits. This principle appears to have been recognized in an Indian decision reported as Makhan Lal v. The State of Uttar Pradesh and others (A I R 1952 A11. 437) and obviously lays down a sound principle. Without realizing however that the condition imposed was against the provisions of the Act, the R. T. A. in the, present case tried to give effect to what it conceived to be the' settled policy of the Government and exercised no independent judgment of its own in the matter, as required by the Act. It seems open to grave question whether the R. T. A. could have granted permits as it did, to a company formed out of applicants before it, without the presentation of a formal application by such a company and without going through the procedure envisaged by section 57 of the Act in respect of such an application. There is a distinction between a limited company and its members in law. Reference inter alia may be made in this connection to Aveline Scott Ditcham v. James J. Miller, (AIR1931PC203) and E. B. N. Company Ltd. v. Dominion Bank (AIR1937PC279). The pro moters of a company may in certain cases act for its benefit even) before its incorporation. But in the circumstances of this case it cannot be maintained that some of the applicants before the R. T. A. were applying on behalf of a company which was incorporated after the date on which the permits were granted to it, specially when we remember that some of the members of the company thus formed were non‑applicants. This point however need not be laboured further as in my view the action of the R: T. A. was wholly vitiated by lack of juris diction. Mr. Karam Elahi Chauhan who appeared for the third respondent also tried to suggest that the appellants had not availed themselves of a right of revision to the Full Board of r Revenue from the order passed by a single member and therefore they had no right to come for redress to this Court or the High Court. Reliance in this connection was placed on the provision of the Board of Revenue Act XI of 1957 read with the Board of Revenue Rules, 1959. Apparently, however, the provision with regard to a revision to the Full Board is not attracted in the present case as a single Member of the Board of Revenue has been designated by the Government under the Motor Vehicles Act as the prescribed Appellate Authority under section 64 of the Act. The appeal under the Act is not apparently a matter within the scope of the Board of Revenue's ordinary powers exercisable under Act XI of 1957. The objection raised therefore is not tenable in the circumstances of the instant case. The upshot of the whole discussion is that the order passed by the R. T. A. was without jurisdiction and should as such have been set aside on appeal by the learned Member, Board of Revenue. I would, therefore, quash the order passed by the learned Appellate Authority and leave the matter to be decided in accordance with the law by the R. T. A. afresh. The appellants. will have their costs in this Court. FAZLE‑AKBAR, J.‑--I entirely concur in the reasons which my learned brothers have given for accepting this appeal. I therefore, agree that this appeal should be allowed with costs. B. Z. KAIKAUS, J.‑--This is an appeal by special leave against the appellate order of the Member, Board of Revenue passed in exercise of the power vested in him as an authority nominated under section 64 of the Motor Vehicles Act. On the 3rd of March 1960, the Regional Transport Authority published a notice in a newspaper calling for applications for stage carriage permits on Nowshera‑Mardan‑Swabi‑Topi route. Already forty‑two stage‑carriage permits were in operation on that route. Seventy‑eight persons including the five appellants submitted applications in response to this notice none of them being a limited company. The Regional Transport Authority fixed the 18th and 19th November 1960, for the hearing of the applications. On that date when the applicants appeared before it, the Regional Transport Authority, instead of deciding the question of grant of permits, told the applicants that the permits were to be granted only to limited companies and that the applicants should form themselves into such com panies. The following resolution was passed by the Regional Transport Authority "Item of the Agenda Decision of the R. T. A.

20. Applications from 78

20. Considered in the light of persons (as mentioned in Instructions on the subject the Agenda) for the from Provincial Govern grant of one Stage ment and the applicants Carriage (Bus) route asked to consider formation permit each for Now‑ of Limited Company/Com shera ‑ Mardan ‑ Swabi ‑ panies instead of asking for Topi route. individual permits. They requested for time and therefore directed to appear again on 10‑12‑60 at Peshawar (this Office)." Thirty‑five out of the applicants took steps to form a limited company called the Ittehad Transport Service Company Limited. Out of remaining applicants some in a meeting passed a resolution calling upon the Regional Transport Authority to decide their applications in accordance with law and in the alternative to refund the amount (Rs. 100 per permit) deposited by them and to issue a fresh notice calling for applications from limited companies only. Some other applicants simply demanded the return of their deposits and a fresh notice for applications from limited companies. The matter came up . for consideration before the Regional Transport Authority on the 13th December 1960, and the following resolution was passed Item of the Agenda Decision of the R. T. A.

2. Reconsideration of appli‑

2. Reference item No. 20 of cations from 78 persons the Agenda of the last (as mentioned in the meeting. About 40 appli‑ agenda) for issue of cants have come forward Stage Carriage permits and have formed a Company on Nowshera‑Mardan‑ known by the name of Swabi‑Topi route. Ittehad Transport Service Company Ltd., Mardan. They have duly registered it and will produce certifi cate. The R. T. A. has decided to issue them 10 route permits now for this (Nowshera‑ Mardan‑Swabi‑Topi) route. The applications of those who have not joined the Company stand rejected because their individual applications cannot be con sidered in the light of the Government Instructions which favour formation of Companies." The present five appellants did not join the Ittehad Transport Service Company Limited and filed an appeal against this order of the Regional Transport Authority before the Member, Board of Revenue. In this appeal the present appellants attacked the orders of the Regional Transport Authority on a number of grounds. It was contended inter alia that the Regional Transport Authority had acted illegally in excluding the applications of the appellants from consideration and in issuing permits to a company who was not an applicant at all and who in fact was not even in existence on the date when the permits were granted. It may be stated here that whereas the permits were granted on the 13th December 1960, the lttehad Transport Service Company Limited was actually registered on the 14th December 1960, though the memorandum and articles had been filed with the Registrar of Joint Stock Companies earlier. At the hearing of the appeal before the Member, Board of Revenue, the appellants also pointed out that the respondent possessed only six vehicles and the grant of permits in excess of six was in any case improper. The Member, Board of Revenue, accepted the last contention and passed an order on 11th March 1961, the relevant portion of which it would be proper to reproduce here because of a contention on behalf of the respondents that the order was passed by the consent of the appellants. The relevant portion of the order of the Member, Board of Revenue, runs: The main point urged is that even if the legal objections are not put forward viz. that new company was not an applicant and had not been incorporated till a day after the decision of the Regional Transport Authority, on merits too the issue of the permits to the respondent is not justified. The respondent company have during this period of four months so far obtained only four vehicles and have been able to place an order for two more. It is, therefore, urged that the number of permits issued to the respondent be restricted at the most to six. As regards the remaining four permits the persons who originally applied including the five appellants and who are not included in the respondent company may be given sometime to form a limited liability company and the permits may be granted to them. This is an eminently reasonable suggestion which the Secretary, Regional Transport Authority, Peshawar, also accepts. I would, accordingly, accept the appeal to the above extent i.e. reduce the number of permits in favour of respon dent No. 2 to six, give a period of three months to the appel lants and the remaining original applicants to form a limited liability company and in case they do so the R. T. A. will grant them the remaining four permits." On the 25th April 1961, the appellants filed a petition for a writ of certiorari quashing the orders passed by the Member, Board of Revenue, and the Regional Transport Authority. They contended in the petition that the legal objections to the order of the Regional Transport Authority had been argued before the Member, Board of Revenue, and had not been abandoned. The High Court dismissed this petition in limine with the following order: "Since the order of the R. T. A. is in the interest of the public, we would not like to interfere with it, even if there be some departure from the rules framed under the Motor Vehicles Act, 1939, for the grant of permits. Moreover, the order of the learned Member, Board of Revenue, passed on appeal, is partly with the consent of the petitioners, which does not entitle them to reagitated the matter." On the 2nd May 1961, the appellants filed a petition for special leave against the order of the Member, Board of Revenue, for still the appellants had limitation for filing 'such an appeal. Leave was granted in this case for a consideration of the question whether the Regional Transport Authority had acted in accordance with law. Two main objections have been taken on behalf of the appellants (i) that the Regional Transport Authority acted illegally in excluding from considerations altogether the applications submitted by the appellants on the ground that there were instructions from the Government debarring the Regional Transport Authority from considering the applications ; and (ii) that the grant of permits to the Ittehad Transport Service Company Limited which was neither an applicant nor in existence on the date of grant of permits was not justified by the provisions of the Motor Vehicles Act. As regards the first of these grounds the appellants have placed on the record a copy of a letter issued by the Secretary to Government, West Pakistan, Planning and Development to the Deputy Secretary, Planning Commission, Government of Pakistan. This letter conveys to the Deputy Secretary, Planning Commission, Government of Pakistan, the decision of the Provincial Government regarding the activities of the Transport Board during the five‑year plan. One of the paragraphs of this letter runs (e) In future no route permits should be given to an individual, but to a public limited company with a paid‑up capital of Rs. 20 lacs and a capacity of at least twenty vehicles under operation. This limited company has to agree to setting up of workshops and Bus stand and to providing other amenities." The case of learned counsel for the appellants is that the reference in the resolution of the Regional Transport Authority was to this letter. Learned counsel contends that in fact this letter was from the Provincial Government to the Planning Com mission and related to the Transport Board and was not intended to control the decisions of the Regional Transport Authority. In any case, it is urged, the Provincial Government had no authority under the Motor Vehicles Act to issue directions to the Regional Transport Authority of this nature. The powers of the Government under the Motor Vehicles Act, learned counsel contends are contained in sections 43, 44, 67 and 68 and none of these sections empower the Provincial Government to issue directions to the Regional Transport Authority as to cases in which they will or will not consider applications for stage carriage permits. It is not necessary to reproduce these provisions or to enter into a discussion of their contents for learned counsel who appears for the respondents does not contend that the Provincial Government does possess any such power. According to learned counsel for the respondents the reference in the resolution of the Regional Transport Authority to instructions from the Government was not to the letter, but to instructions from the Provincial Transport Authority which had been issued from time to time relating to the preference to be given to limited companies as against individuals. These directions, it is urged, are authorised by section 44(3) which runs :‑ "44 (3). A Provincial Transport Authority shall exercise and discharge throughout the Province the following powers and functions, namely :‑ (a) to co‑ordinate and regulate the activities and policies of the Regional Transport Authorities, if any, of the Province ; (b) to perform the duties of a Regional Transport Authority where there is no such Authority and, if it thinks fit or if so required by Regional Transport Authority, to perform those duties in respect of any route common to two or more . regions ; (c) to settle all disputes and decide all matters on which differences of opinion arise between Regional Transport Authorities ; and (d) to discharge such other functions as may be pre scribed." This provision authorises the Provincial Transport Authority to regulate the policy of the Regional Transport Authorities and it is contended, the preference of limited companies over individuals is a matter of policy. The directions which are said to have been issued by the Provincial Transport Authority have not been printed but some of them have been attached to the concise statement filed by the respondents (the Regional Transport Authority and the Ittehad Transport Service Company Limited). In Standing Instruction No. 13 there are directions to the effect that limited companies should be formed and individuals excluded as far as possible. It is sufficient to reproduce para. 3 of this Instruction "

3. The Secretaries of all the Regional Transport Autho rities are now requested to go through the copy of the attached note which was prepared on this subject and take necessary steps to organise limited companies in their regions. Such companies should be granted more permits and other facilities if they are already in existence. If not, efforts should be made to encourage and if necessary force individual operators to merge themselves into limited companies or societies in the greater interest of the public. One of the natural consequences of the adoption of this policy would be not to grant routes to outsiders on roads which are already being plied by a limited company. If now permits are granted on these routes, then the very object of the whole scheme is frustrated." Even this instruction does not definitely exclude consideration of applications of individuals, but if it did, it will not be in accor dance with the provisions of the Motor Vehicles Act. The Motor Vehicles Act does not prescribe any conditions as to the status of a person whose application for a permit can be considered and prima facie it envisages that any person whether an individual, a partnership, an association or a limited company can apply for the grant of a permit. The Provincial Transport Authority cannot by means of a letter relating to policy debar individuals from applying for route permits. That can be done only by an amendment of the Motor Vehicles Act. Of course the Provincial Transport Authority can give directions that limited companies be preferred to individuals. That would be on the ground that the limited companies are generally in a better, position to run transport service in an efficient manner. But they cannot give directions excluding the consideration of the application of an individual. Learned counsel for the respondents contended in this connection that the Regional Transport Authority had not altogether excluded the application of the appellants from consideration and had only shown a preference for limited companies. A proper reading of the resolutions passed by the Regional Transport Authority does not support the contention of learned counsel. In the second resolution they have clearly stated that individual cases are on account of the instructions of the Government not to be considered at all and this appears also to be implied in the first resolution that they passed. The Regional Transport Authority had acted illegally in the exercise of its jurisdiction in excluding individual applicants from consideration. The second ground urged by learned counsel for the appellants has no less force. A study of the relevant provisions g of the Motor Vehicles Act can lead to no conclusion other than this that a permit is granted only to an applicant. Section 46 provides for the contents of the application which is to be submitted for a stage carriage permit. It runs "

46. An application for a permit to use a motor vehicle as a stage carriage (in this Chapter referred to as a stage carriage permit) shall contain the following particulars, namely :‑ (a) the type and seating capacity of the vehicle in respect of which the application is made ; (b) the route or routes on which or the area within whirl; it is intended to use the vehicle ; (c) the time table, if any, of the service to be provided; and (d) such other matters as may be prescribed." Under section 47 the Regional Transport Authority is bound to "take into consideration any representation made by persons already providing transport facilities along or near the pro posed route or routes or by any local authority or police authority within whose jurisdiction any part of the proposed route or routes lies or by any association interested in the provision of road transport facilities." It may be stated here that the appellants already hold permits on the Nowshera‑Mardan Swabi route. There is a detailed procedure for the hearing of these applications provided in section 57 of the Motor Vehicles Act. All applications for stage carriage permits are to be submitted six weeks before the notified date. The applications are made available for inspection and a substantial portion thereof is to be published in a prescribed manner along with a notice of the date on which representations in connection therewith are to be submitted. If a person is granted a permit without an application it means that the whole of this procedure has been omitted in respect of that person. No grant of permit without substantial compliance with section 47 can be valid. Learned counsel for the respondents urged that some of the applicants having formed themselves into a company there was just a modification of the application for permit by the Regional Transport Authority and such modification was allowed by rule 4.8 of the Punjab Motor Vehicles Rules. The modification which is referred to in this rule relates to the different forms men tioned in the first part of the rule, the intention being that some reasonable change in the contents of the application in order that it may fully comply with the rules may be permitted, but this surely does not mean that one applicant can be substituted for another. It is a modification of the application which is intended. The substitution of one person by another is not a modification of the application. There is no application at all by the person to whom the permit is granted. At the same time assuming that rule 4.8 covered substitution the rule would be ultra vires for if the Motor Vehicles Act contemplates only /V the grant of permits to an applicant the rules cannot provide for a grant without an application. Rules have to be framed consistently with the Act. It is urged that some of the applicants having formed them selves into a company it cannot be said that there is any new applicant for the company takes the place of those who have merged themselves into it. But a company is a juristic entity quite apart from its share‑holders. This well‑settled propo sition has not been challenged before us. Also the argument fails on facts for the shareholders of the Ittehad Transport Service Company Limited are not confined to applicants for permits. Learned counsel for the appellants has pointed out that eight out of the persons who have joined the Ittehad Transport Service Company Limited were not applicants for route permits. A contention was put forward that there is a general principle permitting transfer to a limited company of whatever was acquired by the promoters of the company before the incor poration of the company in their capacity as such promoters. In the first place it is not shown at all that any of the applicants are promoters of the company but even otherwise the argument is without force for the promoters never acquired anything. The acquisition was made in the name of the company i.e. acquisition of the permit. Also whatever considerations may apply to an acquisition of property, no company can claim that a permit which stood in the name of a particular promoter should be transferred to it. A permit is as such not transferable at all. If a company wants the grant of a permit held by its promoters an application will have to be made by the company itself. Of course the Regional Transport Authority may agree to grant the permits already held by the promoters to the company but that is a matter of discretion and not a matter of right for the company. With respect to the argument based on rule 4.8 it should also be pointed out that we are hearing an appeal against the order of the Member, Board of Revenue, and it is open to us to interfere even with an exercise of discretion by the Regional Transport Authority in modifying an application, if we come to the conclusion that on principle the discretion was not properly exercised. At the same time the rule speaks of a reasonable modification. If we were of the opinion that the modification was not reasonable we could set it aside on that ground. In this case apart from all other considerations I would not hold the modification to be reasonable. Learned counsel for the respondents urges that in substance when a permit is granted to a company it is granted to the shareholders although the company may be a separate juristic entity, and we should not interfere with an order of the Regional Transport Authority made in the public interest on what are only technical grounds. I do not think we are really deciding this appeal on a technical ground because the Motor Vehicles Act does not contemplate grant of permit to a person without an application and this is something which goes to the root of the matter, but even if it was a case of an irregularity we would interfere with it on the ground that the appellants have been prejudiced. Those who have formed themselves into a company have been placed at an advantage. The appellants if they knew that it was only a company which could be granted permits might have formed themselves into a company before hand and then applied for permits in the name of the company. It is true that the appli cants have been granted four permits if they form themselves into a company but the condition is that all the appellants should join and this may not be acceptable to the appellants, some of whom may want to form themselves into a company along with other persons. It is not proper to force on the appellants unwanted associations. Two objections of the respondents remain to be noticed. One is that in this case a further appeal lay from the order of the Member, Board of Revenue, to the Board of Revenue. This, it is said, is provided in section 7 of the Board of Revenue Act. It is section 64 of the Motor Vehicles Act which provides for appeals against the order of the Regional Transport Authority. According to that section the person aggrieved may file an appeal to the prescribed authority. The authority prescribed in the present case is the Senior Member, Board of Revenue. The provision in section 7 of the Board of Revenue Act which provides for appeals against the order of the Member, Board of Revenue, relates only to the orders passed by the Member, Board of Revenue while acting in respect of matters to which the Board of Revenue Act applies. The Senior Member, Board of Revenue, acting as Appellate Authority under the Motor Vehicles Act is a persona designata. He does not function as a Member, Board of Revenue, but as a person nominated by the Provincial Government under Section

64. However, even if the Provincial Government had prescribed that any Member of the Board of Revenue could hear appeals under section 64 still a further appeal against his order could not lie just because of a provision in section 7 of the Board of Revenue Act. A further appeal against the order of an authority acting under section 64 could have been provided for only by the Motor Vehicles Act itself. If the Motor Vehicles Act contemplates the finality of the order passed by the authority nominated under section 64 no provision in the Board of Revenue Act can create a further right of appeal or make the order of that authority other than final. The second objection taken by learned counsel for the respondents was that the order passed by the Member, Board of Revenue, was a consent order, and therefore, could not have been challenged by the appellants. This is not the impression which one gains on a reading of the extract of the judgment of the Member, Board of Revenue, which has already been reproduced. The impression created is that while law points were argued as a last resort it had been urged that in any case the retention of four permits by Ittehad Transport Company in view of the fact that they had only six vehicles was unjustified. The Member, Board of Revenue, used the word "suggestion." That does not at all involve that the only argument put forward was as to the cancellation of these four permits. In their writ petition before the High Court the appellants had stated that the law points had not been given up. At the same time it is to be observed that the respondents do not claim to be parties to any agreement or compromise so that there was no bar at all to their attacking the order of the Member, Board of Revenue. I am of the opinion that this appeal should succeed. I would set aside the order of the Member, Board of Revenue, as well as the order of the Regional Transport Authority excluding the applications of individuals from consideration, and granting permits to the Ittehad Transport Service Company Limited, and would give a direction that the applications be now disposed of in accordance with law. HAMOODUR RAHMAN, J.‑This appeal, by special leave, is directed against an order of a Member, Board of Revenue, West Pakistan, as an Appellate Authority under the Motor Vehicles Act, 1939, dismissing the appeal filed by the appellants before us. The circumstances in which the said appeal came to be filed may be briefly stated as follows :‑ The respondent No. 2, which is the Regional Transport Authority, Peshawar Region, decided to increase the transport facilities on the Nowshera‑Mardan‑Swabi‑Topi route, although 42 stage carriages (with 42 permits) were already plying on the said route in addition to the Government Transport Service, and accordingly published notices on the 10th of March 1960, in the weekly "Driver" and other transport journals inviting applications for the grant of additional stage carriage permits on the said route. This was followed by a Press Communiqu ; but neither in the notices published nor in the Press Communique was there any indication that the applications of only limited concerns or companies will be entertained or considered. The invitation was in general terms to apply on prescribed forms obtainable from the office of the Superintendent of Police of the area, in which the applicant happened to be residing, along with an affidavit which was again to be in the prescribed form duly attested by a Magistrate. Each application was also required to be accompanied by a treasury receipt showing the deposit of a fee of Rs. 100 in a Government Treasury and was to be submitted by the 15th of April 1960. In response to the notices 78 persons, including the present appellants, applied in the manner directed in the Press Com munique for the grant of stage carriage permits on this route and each of them deposited the requisite fee of Rs. 100 in the Government Treasury. The Regional Transport Authority, thereafter, duly published the names of the applicants, as required by the Motor Vehicles Rules in the Transport Journals as also notified each applicant individually by letter to appear before the meeting of the Regional Transport Authority to be held on the 18th/19th of November 1960, to explain his case before the said Authority. Accordingly, all the individual applicants appeared before the Regional Transport Authority on the notified date when for the first time they were verbally asked to form themselves into limited companies and to enable such companies to be formed the Authority adjourned its meeting to the 10th of December 1960. The actual order recorded was in the following terms "Considered in the light of Instructions on the subject from Provincial Government and the applicants asked to consider formation of Limited Company/Companies instead of asking for individual permits. They requested for time and therefore directed to appear again on 10‑12‑60 at Peshawar (this Office)." Some of the applicants belonging to the Motor‑Owners Union of District Mardan and Malakand Agency met at a meeting on the 29th of November 1960, and unanimously passed reso lutions protesting against the action of the Regional Transport Authority and demanding that each application be considered on its own merits, since the notices inviting applications did not restrict the category of applicants. The Authority, it was pointed out, was legally bound to consider the case of each individual applicant but, if the Authority intended to grant permits only to limited companies contrary to the terms of the advertisement then it should return all pending applications together with the fees deposited by such applicants and invite fresh applications from companies only. This meeting also elected a Sub‑Committee of 4 persons to pursue the matter and to seek legal relief, if necessary, on behalf of all persons present at the meeting. Copies of these resolutions were duly forwarded to the Regional Transport Authority and the Transport Authority was requested not to reach any final decision at the meeting proposed to be held on the 10th of December 1960. Similar protests were also sent by several other groups of applicants. The meeting proposed to be held on the 10th of December 1960, was adjourned to the 13th of December 1960 and on this day the Authority, notwithstanding the protests by the appellants and some other groups of applicants, recorded the following order. "Reference item No. 20 of the Agenda of the last meeting. About 40 applicants have come forward and have formed a Company known by the name of Ittehad Transport Service Company Ltd. Mardan. They have duly registered it and will produce certificate. The R. T. A. has decided to issue them 10 route permits now for this (Nowshera‑Mardan‑Swabi‑Topi) route. The applications of those who have not joined the Company stand rejected because their individual applications cannot be considered in the light of the Government Instructions which favour formation of Companies." It is pointed out to us on behalf of the appellants that the assertions made in the said order to the effect that 40 applicants bad formed themselves into a company known by the name of Ittehad Transport Service Company Limited, Mardan, and that the same had been duly registered, were incorrect, as no such company had been either formed or registered up to that date, nor had 40 applicants joined in the formation of any such company. The certificate of incorporation filed in the case appears to have been issued by the Assistant Registrar of Joint Stock Companies, Peshawar Region, on the 14th day of December 1960, and the list of share‑holders was sent to the Secretary, Regional Transport Authority, Peshawar, only on the 16th of January 1961, by the Managing Director of the said company. It shows that it had altogether 38 share‑holders, of whom at least 8 were not persons who had submitted any application for the grant of a route permit in response to the advertisement issued by the Regional Transport Authority. The appellants filed an appeal against the said order before the prescribed Appellate Authority and the same was heard by a Member, Board of Revenue, West Pakistan. In the grounds of appeal filed before the said Appellate Authority it was clearly urged that the action of the Regional Transport Authority was wholly illegal and in contravention of the provisions of the Motor Vehicles Act and the Rules framed thereunder. The action of the Regional Transport Authority in granting route permits to a company, which had neither applied for such a permit nor had come into legal existence on the date on which the permit was purported to be granted to it, was also challenged as being beyond the jurisdiction of the Regional Transport Authority. The Member, Board of Revenue, in his order noticed that several legal objections had also been raised but did not deal with them and proceeded upon the ground that even if the legal objections are rot put forward, the respondent‑company was not etitled to the 10 route permits granted to it, as even up to the date of the hearing, i.e., the 11th of March 1961, the said company had not been able to procure more than 4 vehicles and to have placed an order for 2 more. The appellate authority, accordingly, reduced the number of permits granted to it from 10 to

6. As regards the remaining four permits the Member directed that the same should be granted to the remaining individual applicants after they had formed themselves into another company, and to enable them to do so a further period of three months' time was given. This order which the appellants sought to have set aside by invoking the writ jurisdiction of the High Court. This petition, was dismissed summarily, as the High Court was of the opinion that the order of the Regional Transport Authority was in the interest of the public and that the order of the Member, Board of Revenue, on appeal had been made partly with the consent of the appellants. Leave was granted in this matter to consider ; (1) whether in the circumstances of the case the Regional Transport Authority can be considered to have declined to discharge its statutory duty under the Motor Vshicles Act, (2) whether the said Authority was justified in considering itself bound by the Government instructions referred to in its order and (3) whether the Regional Transport Authority was bound either to consider the individual applications filed on their respective merits or to return their applications along with the fees deposited by them and invite fresh applications from companies. Mr. Mahmud Ali appearing on behalf of the appellants has contended that the proceedings of the Regional Transport Authority were wholly without jurisdiction. According to him the Regional Transport Authority being a statutory body was obliged to act strictly in accordance with the law which vested it with jurisdiction and could not disregard its provisions. Under the provisions of the said statute it was incumbent, it is said, upon it to exercise its independent judgment after considering the application of each individual applicant on its merits. The fact that its order ex facie indicated that it had not done so by mistakenly considering itself to be bound by Government's instructions, according to him, amounted to a refusal on its part to exercise its statutory jurisdiction. Its order was, therefore, clearly not only in violation of law but also without jurisdiction, since it had purported to grant permits to a person (a company) which was neither in legal existence on the date of the order nor could have applied for the grant of any route permit. The alleged instructions relied upon by the Regional Trans port Authority are also challenged on two grounds, namely, (1) that they were not in the nature of instructions at all from the appropriate Government and (2) that, in any event, the Govern ment had no authority to issue such instructions to a statutory body like the Regional Transport Authority. The Motor Vehicles Act, it is contended, is a complete Code in itself which defines even the relations of the Government with the bodies set up thereunder and leaves no scope for the Government to issue any general executive instructions to the said bodies. Before proceeding to consider the arguments advanced on behalf of the appellants it is necessary to mention here that the instructions referred to in the order of the Regional Transport Authority were contained in a letter written on behalf of the Development Commissioner and Secretary to Government of West Pakistan, Planning and Development Department, to the Deputy Secretary, Planning Commission, Government of Pakistan, on the 15th April 1960, on the subject of nationalization of Road Transport and expansion of the Transport Boards of West Pakistan during the second five year plan. This purported to convey the decision of the Provincial Government in respect of the activities of the Transport Board during the said plan period and, inter alia, mentioned that: "(e) in future no route permits should be given to an individual but to a public limited company with a paid‑up capital of Rs. 20 lacs and a capacity of at least 20 vehicles under operation. This limited company has to agree to setting up of workshops and Bus‑stands and to providing other amenities." A copy of this letter was endorsed by the Deputy Secretary to the Chairman Provincial Transport Authority who, in his turn, had copies of the said endorsement sent to all Secretaries, Regional Transport Authorities, West Pakistan, for "information and guidance." It is worth nothing, however, that with respect to the decision quoted above the Chairman of the Provincial Transport Authority mentioned that "in order to give practical shape to the decision (e) necessary amendments to the Motor Vehicles Act have since been suggested to Government." This sentence seems to indicate that the Chairman, Provincial Transport Authority, was conscious of the fact that the decision of the Government quoted above could not have been given effect to until appropriate amendments had been made in the Motor Vehicles Act itself. The circular, therefore, contained no specific instructions to the Regional Transport Authorities obliging them to act in any particular way nor did it purport to fettar their discretion in any particular manner. The endorsement was circulated to them for information and guidance only and not with a view to influence their decision in any particular manner. Reverting now to the Motor Vehicles Act it appears that section 44 of the Act requires the Provincial Government to constitute for the Province a Provincial Transport Authority and under it Regional Transport Authorities to exercise such powers and functions of the Provincial Transport Authority as may be specified in a Notification in respect of each Regional Transport Authority. These Authorities were to consist of both officials and non‑officials appointed by Government, provided that no person who had any financial interest in any transport undertaking or was employed by it could be appointed as a member of such an Authority. Subsection (3) of this section specifies the functions of the Provincial Transport Authority and subsection (4) gives the power to the Provincial Transport Authority to issue directions to Regional Transport Authorities, which are to be guided by such directions. Section 45 requires that every application for a permit shall be made to the Regional Transport Authority. Section 46 sets out the particulars that are to be mentioned in the application, and section 47 prescribes the procedure which a Regional Transport Authority is required to follow "in deciding whether to grant or refuse a stage carriage permit." Similar procedural provisions have been made in sections 50, 53 and 55 for contract carriage permits, private carrier's permits and public carrier's permits respectively. I am, in the present case, concerned only with stage carriage permits, but in order to appreciate the exact scope of the powers of the Regional Transport Authorities in that behalf it is necessary to set out herein the provisions of sections 47 and 48 :‑ "47.‑(1) A Regional Transport Authority shall, in deciding whether to grant or refuse a stage carriage permit, have regard to the following matters, namely :‑ (a) the interest of the public generally ; (b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken ; (c) the adequacy of existing road passenger transport services between the places to be served, the fares charged by those services and the effect upon those services of the service pro posed ; (d) the benefit to any particular locality or localities likely to be afforded by the service ; (e) the operation by the applicant of other transport services and in particular of un remunerative services in conjunction with remunerative services ; and (f ) the condition of the roads included in the proposed route or routes ; and shall also take into consideration any representations made by persons already providing road transport facilities along or near the proposed route or routes or by any local authority or police authority within whose jurisdiction any part of the proposed route or routes lies or by any association interested in the provision of road transport facilities. (2) A Regional Transport Authority shall refuse to grant a stage carriage permit if it appears from any time‑table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened Provided that before such refusal an opportunity shall be given to the applicant to amend the time‑table so as to conform to the said provisions.

48. A Regional Transport Authority, may, after considera tion of the matters set forth in subsection (1) of section 47,‑ (a) limit the number of stage carriages or stage carriages of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region ; (b) issue a stage carriage permit in respect of a particular stage carriage or a particular service of stage carriages ; (c) regulate timings of arrival or departure of stage carriages whether they belong to a single or more owners ; or (d) attach to a stage carriage permit any prescribed condition or any one or more of the following conditions, namely :‑ (i) that the service specified in the permit shall be commenced not later than a specified date and be continued for a specified period ; (ii) that the service may be varied only in accordance with specified conditions ; (H‑a) that the stage carriage or stage carriages shall be used only on specified routes or in a specified area ; (iii) that copies of the fare table and time‑table shall be exhibited on the stage carriage and that the fare table and time table so exhibited shall be observed ; (iv) that no more than a specified number of passengers and not more than a specified amount of luggage shall be carried on any specified vehicle at any one time ; (v) that within municipal limits and in such other areas and places as may be prescribed passengers shall not be taken up or set down at or except at specified points ; or (vi) that tickets shall be issued to passengers for the fares paid." It will be noticed from the above that the Legislature has left us in no doubt as to the matters which the Regional Transport Authority is to take into consideration in granting or refusing a permit. The provision again for taking into con sideration any representation made by persons already providing transport facilities indicates that there is also to be some kind of a hearing when the Authority sits to consider the applications at a meeting. Under section 58 a permit other than a temporary permit is to be effective for such period, not less than three years and not more than five years, as the Authority may in its discretion specify. Section 60 gives the Authority the power to cancel or to suspend a permit on specified grounds. Section 61 seems to indicate that a permit is not, as a rule, transferable or heritable. Thus even in the case of the death of a holder of a permit his successors cannot utilised it for more than three months after the death, unless it has within that time been transferred to the successors of the deceased permit‑holder. Section 64 gives a right of appeal to any person aggrieved by the refusal of a permit by a Provincial or a Regional Transport Authority, or by any condition attached to a permit granted to him. The Appellate Authority is an Authority prescribed under the Act. Lastly section 68 gives to the Provincial Government the power to make rules under the Act for carrying into effect the provisions of this Chapter, namely, Chapter IV, which deals with the "Control of Transport Vehicles" and provides for the granting of permits for the use of such vehicles. An examination of the provisions of the Motor Vehicles Act further reveals that it is divided into various Chapters dealing with various subjects, such as Licensing of Drivers of motor vehicles, registration of motor vehicles, control of transport vehicles, construction, equipment and maintenance of motor vehicles, control of traffic, insurance of motor vehicles against third party risks, offences, penalties and procedures, and with respect to each subject‑matter there is at the end of each Chapter a provision vesting the Provincial Government with power to make rules for giving effect to the provisions of that Chapter. Thus the rule‑making power of the Provincial Government is set out in sections 24, 41, 68, 70, 91, 92 and

111. There appears to be no scope, therefore, for the argument that under the scheme of this Act the Provincial Government could have had, apart from its rule‑making power, any kind of a general supervision over the various Authorities constituted under the Act. Indeed, the scheme appears to be that the Government can only make rules laying down general principles for the guidance of the Authorities under the Act in exercise of the powers expressly given to it under the sections above‑mentioned.) Once it has framed such rules, it has no other power of inter, ference with the day to day functioning of these Authorities, Only section 44(4) seems to indicate that the Provincial Transport Authority may issue directions to Regional Transport Authorities for their guidance and that too subject to such conditions as may be prescribed by Notification with respect to each Regional Transport Authority. The Provincial Government has, in fact, framed rules under these provisions, which are called the Punjab Motor Vehicles Rules, 1940. These rules also indicate that they are divided chapter wise in the same manner as the Act itself, each chapter dealing with a particular subject‑matter. Thus the rules dealing with the control of transport vehicles are under Chapter IV and commence with rule 4.1. Under these rules a Provincial or a Regional Transport Authority can only function at a duly constituted meeting and under rule 4.6 the Secretary of the Regional Transport Authority is required to post a copy of each application received for a stage carriage permit or a public carriers' s permit on the notice‑board outside the office of the Authority together with a notice of the date before which representations may be submitted and the date on which those representations will be considered. Rule 4.7 prescribes that at any meeting at which an application for any permit is to be considered the Authority has to grant a hearing to any applicant or any person who has made a representation in connection with an application for a permit and desires to be heard. At such hearing the applicant or the person making the representation is entitled to present his case either in person or through an agent duly authorised in writing. Rule 4.33 prescribes the procedure for the transfer of a permit. This requires that the holder of a permit and the person to whom a permit is sought to be transferred shall make a joint application in writing to the Regional Transport Authority, by which a permit is issued, setting forth the reasons for the proposed transfer. Even in the case of such an application for a transfer the Regional Transport Authority may summon both parties to appear before it and may deal with the application for transfer as if it were an application for a permit. Rule 4.37 prescribes the Appellate Authority. Against the order of a Regional Transport Authority the prescribed Appellate Authority is to be one of the Provincial Commissioners (now a Member, Board of Revenue), and in respect of an order of a Provincial Transport Authority a Board consisting of two such Commissioners (now Members) nominated by the Provincial Government. Rule 4.38 also indicates that the appellant has a right to be heard by the Appellate Authority either in person or through an agent or representative authorised by him in writing in this behalf. The provisions of the Act read with the Rules, therefore; clearly indicate that applications for permits have to be made on prescribed forms specifying certain particular matters which are to be supported by an affidavit of the applicant verifying the correctness of the statements made in the application, and are to be accompanied with a receipt showing the deposit of the fee of Rs.

100. The applications when received are to be published either by putting them up on the notice‑board of the office of the Authority or by publishing them in newspapers at the cost of the applicants. Persons interested are entitled to make representations against such applications and both the applicants as well as persons making representations are entitled to be heard before the Authority. The Authority is also required under the Act itself to take into consideration certain specified matters when deciding whether to grant or refuse a stage carriage permit, after hearing the applicant and any person making any representation against the grant of the application. The decisions of the Regional and the Provincial Transport Authorities are subject to appeal before the presbribed Appellate Authority and even at the appeal stage the appellant is entitled to a hearing. The above sufficiently indicate that an application has o necessity to be made by some person in esse, for otherwise i would not be possible for the applicant to verify an affidavit before a Magistrate. Of course, there is nothing in the Act which limits the category of persons who may apply. It may be any juristic person. A limited liability company would also be such a juristic person and would be entitled to apply. But it does not appear that the Motor Vehicles Act and the Rules framed thereunder contemplate a situation where individuals having actually applied for a permit can ask for the grant of a permit to an association to be formed by them subsequently. An applicant, it further appears, acquires a right under the Act and the Rules to have his application decided in accordance with their provisions after being heard, if he so desires. The argument, therefore, that the Act being a complete and exhaustive Code in itself, which defines and prescribes the functions of the Government and each of the Authorities constituted under it in detail, excludes the possibility of there being left any undefined residuum of powers in the Provincial Government, appears to be of substance. The powers of the Provincial Government under the Act appear to be strictly confined to the making of rules. It cannot interfere with the functioning of the Authorities constituted under the Act save by the Rules that it may frame in that behalf. . There is nothing in section 47 (1) to indicate that a Regional Transport Authority can dispose of S an application for a permit merely upon the instructions of a Government without considering the matters specified in clauses (a) to (f) of the said subsection, and without taking into consideration the representations, if any, made by the categories of persons specified in the said subsection or granting any hearing to any applicant who wishes to be heard. It has been urged, however, on behalf of the respondents that in so far as subsection (4) of section 44 empowers a Provincial Transport Authority to give directions to a Regional Transport Authority, the Regional Transport Authority was entitled to act upon the directions which were circulated to it in the present case by the Chairman of the Provincial Transport Authority. In the first place it must be pointed out that even the directions that can be issued under subsection (4) of section 44 cannot run counter to the provisions of section 47 nor exempt the Regional Transport Authority from T taking into consideration the matters therein mentioned. Secondly, in the present case, as I have already indicated, there was no direction by the Chairman of the Provincial Transport Authority to the Regional Transport Authorities to act in terms of sub‑paragraph (e) of the endorsement of the Deputy Secretary of the 5th of April 1960, for, the Chairman himself has mentioned in his forwarding letter that in order to give practical shape to the said decision of the Provincial Government amendments to the Motor Vehicles Act will be necessary. Without such amendments, therefore, the directions contained in the said clause of the endorsement could not have been implemented even according to the Chairman of the Provincial Transport Authority. It is difficult, therefore, to appreciate how he could be deemed to have issued directions which he himself felt could not be implemented without necessary amendments in the Act itself. Learned counsel appearing for the respondents have also urged that the Regional Transport Authority had committed no illegality, for, it had, in fact, given a hearing to the parties and considered their representations. Its decision was, according to them, based upon a policy adopted by it which was designed to advance the interest of the travelling public and with such questions of policy the Courts were not concerned. The Transport Authorities were, it is claimed, the best Judges of policy and there is nothing in the Motor Vehicles Act and the Rules framed there under to require them to announce their policy before hand or even at the time notices are issued inviting applications for permits. The notices are worded generally. They do not, it is said, take away the right of any one to make an application; but at the same time they do not also debar a limited liability company from making an application or prevent persons who have already applied from combining to promote a company to utilize a permit granted to them. The permit, it is urged, was in this case virtually granted to the promoters of the company who were actual applicants before the Regional Transport Authority. The mere fact, therefore, that some more persons had sub sequently joined as share‑holders of the company or the company had been registered on the day following, did not indicate that the permit had been granted to a non‑existing person. In any event, the applicants, it is maintained, have no cause for complaint when even before the Appellate Authority they appeared to have agreed to make an effort to form another company for the four permits which the said Authority had taken away from those granted to the respondent‑company. They cannot now be allowed to turn around and resile from the position they took up before the Appellate Authority. Their conduct before the Appellate Authority indicated that what they really sought was that some permits should also be granted to them and not that they were, in any way, interested in challenging the propriety of action of the Regional Transport Authority. In support of these contentions reliance is also placed on behalf of the respondents on two decisions of this Court. The first is in the case of Muhammad Hanif and others v. The Provincial Transport Authority, Karachi and others (1958) 1 P S C R 321 : P L D 1958 S C (Pak.) 571) and the second is in the case of Tariq Transport Company v. S.argodha Bhera Bus Service and others (1958) 2 P S C R 71 ; P L D 1958 S C (Pak.) 437). In the first case a Transport Syndicate set up at the instance of the Chief Commissioner, Karachi, to operate stage carriages in Karachi had on its application been allotted some route permits by the Provincial Transport Authority. Subsequently, the Provincial Transport .Authority called for applications for permit and notified that it would consider the re‑allotment of bus routes. Certain operators who had for some years been running stage carriages on temporary permits granted for periods of three months at a time, objected to the re‑allotment of the routes and also to the consideration of the application for allotment of any permits to the Syndicate mainly on the ground that the Syndicate being a creature of the Chief Commissioner, who was the Appellate Authority in respect of decisions of the Provincial Transport Authority, the Authorities were bound to be biased in its favour. The High Court repelled these contentions and the order of the High Court was maintained by this Court on appeal. It was held that there was nothing in the Motor Vehicles Act which prevented the Transport Authorities from giving preference in respect of certain routes to such a Syndicate nor could the Transport Authority be said to be a quasi judicial body who were bound on the ground of the alleged bias in favour of an official Syndicate to refrain from considering its application, for, even if there was such a likelihood, the bias was covered by the statute which makes public interest the sole consideration for its decision. Similarly in the other case too this Court held that a Regional Transport Authority acting under the Motor Vehicles Act was not a judicial or quasi‑judicial body but that in granting permits it acted purely in an administrative capacity. Furthermore that no person had a legal right to the grant of a permit which depended entirely on matters of policy in the light of the con siderations mentioned in section

47. Hence in the absence of any allegation of excess or absence of jurisdiction the High Court had no power to interfere either by way of a mandamus or certiorari with any decision of a Regional Transport Authority regarding the grant or refusal of a permit. In the circumstances, even the violation of a procedural rule regulating the hearing by such a Tribunal could not be a ground for quashing its proceedings, if the error did not amount to a denial of a fair hearing and did not cause any prejudice to the persons complaining. I am in agreement with the salutary principles of law laid down in these cases but what we would like to point out is that there is material difference between the facts of those cases and the facts of the case before me. In the present case, a company had not even come into existence on the day the Regional Transport Authority purported to grant permits to it, nor had the Authority before it any application from such a company, and again the persons who had not joined the company were not even given a hearing by the Transport Authority which considered itself bound to reject their applications outright without consideration on merits on the mistaken ground that it had under Government's directions no power to even entertain the applications received from individuals in response to its own notices. It seems to me that under the scheme of the Motor Vehicles Act the filing of an application is a condition precedent to the vesting of jurisdiction in the Transport Authority to grant or refuse a stage carriage permit. Until such an application has been received under section 46 of the Act, the Regional Transport Authority does not acquire any jurisdiction to grant or to refuse a stage carriage permit. In the U absence of any such application, therefore, it cannot be said that the Transport Authority acted within its jurisdiction, in the present case, by granting a permit to a non‑existing person who could not even have filed such an application. Its decision, therefore, was clearly within the rule laid down in the case of Tariq Transport Company a decision made with a total absence of jurisdiction. In the case of Muhammad Hanif it must be further remem bered that the Syndicate had duly applied and the complaining party in that case wanted the consideration of the application of the Syndicate to be excluded. This Court held that the Transport Authority was bound under the Act to take into consideration the application of the Syndicate. It was observed in that case that the Motor Vehicles Act was 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. In the present case, the appellants did, in the first instance, seek their remedies in the manner provided in the statute and came to the High Court only when they failed in their efforts to get any redress from the authorities under the statute. The contention that yet another appeal lay to the whole Board of Revenue is without any substance, for, the appeal under the Motor Vehicles Act is to the "prescribed authority" and not to the Member, Board of Revenue, or Board of Revenue as such. It so happens that under the Rules framed under the Act the Punjab Government has specified a Financial Commissioner, who is now a Member, Board of Revenue, as such Appellate Authority. The Member, Board of Revenue, so nominated by Government is, therefore, a persona designata and the appeal is not to the Board of Revenue as such. Hence no second appeal lies to the Board from the decision of a Single Member thereof under the Motor Vehicles Act. It remains now to consider the last argument advanced on behalf of the respondents that in effect the Regional Transport Authority had granted the permits to certain applicants who had expressed their intention to promote a company, and the grant was not to the company, as such. This argument is not supported by the order of the Regional Transport Authority, which clearly mentions that the permits are granted to the company, but even otherwise h have no doubt in my mind that a company is a separate juristic person distinct and different from its share‑holders. The company x is not a mere alias for its share‑holders nor merely an agent for them. Each has distinct rights. A company has certain rights against its share‑holders also. An individual share‑holder is not in law liable to indemnify the company against the debts which it incurs except to the extent of the share capital contributed by him. His liability is limited to the amount of the shares purchased and he can only be called upon to contribute, in the event of a winding up, only the uncalled share capital, if any. If authority is needed for this proposition, reference may be made in the decision of the House of Lords in England in the case of A. Salomon & Company Limited v. Aron Salomon (1897 A C 22) where Lord Macnaghten observed that "the company is at law a different person altogether from the subscribers to the memo randum ; and though it may be that after incorpora tion the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustees for them. Nor are the subscribers as members liable, in any shape or form, except to the extent and in the manner provided by the Act." This view has been consistently followed in England and even adopted, by the Judicial Committee of the Privy Council, in the case of Avolin Scott Ditcham v. James J. Miller (A I R 1931 P C 203) where the general notion that a private company need not be regarded as a corporation distinct from the persons composing it was dispelled in the following words :‑ "It is necessary in their Lordships' opinion that this view should be once for all dispelled. The duties and responsibilities of the liquidator are as serious in the liquidation of a private company as any other." Again in another case from Ontario the view taken by the House of Lords in the case of A. Salomon & Co. Ltd. v. Aron Salomon was re‑iterated and it was pointed out in the case of E. B. N. Company Limited v. Dominion Bank (AIR1937PC279) that "They believe it to be of supreme importance that the distinction should be clearly marked, observed and maintained between an incorporated company's legal entity and its actions, assets, rights and liabilities on the one hand, and the individual share‑holders and their actions, assets, rights and liabilities on the other hand." In this view of the matter it is idle to suggest that the grant of the permit in the name of the company was really a grant in favour of the individual applicants who had agreed to promote the company. If that had really been so then a transfer of the W permit would have had to be effected, in accordance with the provisions of section 61 of the Act, in favour of the company with the permission of the Regional Transport Authority. No such transfer of the permit has so far been made, for, the order of the Transport Authority clearly shows that the permit was in fact granted in the name of the respondent "Ittehad Transport Service Company Limited." In these circumstances, I am unable to agree with the learned counsel appearing on behalf of the respondents that no serious illegality had been committed in the present case, or that no prejudice had been caused to the appellants before me. In my view, even though Courts are normally reluctant to interfere with the exercise of discretion by administrative authorities or tribunals yet where a clear case has been made out of an authority acting in excess of jurisdiction or of an authority refusing to Y exercise the jurisdiction vested in it, the Courts have always claimed to have had the jurisdiction by way of a writ of mandamus to set aside the order passed by it or to command it to exercise its jurisdiction in accordance with law. This was accepted even in the case of Tariq Transport Company and it is upon this principle, we think, that the present was a fit case in which the High Court should have interfered by directing the Regional Transport Authority to set aside its illegal and ultra vires order and to consider the applications of each of the applicants on merits. The question that next arises is as to whether this Court should, under Article 160 of the late Constitution, entertain an appeal directly from the order of the Member, Board of Revenue, after some of the appellants had unsuccessfully invoked the writ jurisdiction of the High Court under Article 170 of the late Z Constitution against the same order. Leave was granted in this case before the new Constitution came into force. At that time this Court had the power to grant special leave to appeal from orders of any Court or Tribunal in Pakistan other than a Court or Tribunal constituted under any law relating to the Armed Forces. This jurisdiction by special leave was not co‑equal with the jurisdiction of the High Court under Article 170 of the late Constitution. It was not therefore, in the nature of a concurrent jurisdiction nor could it be said that a party having had recourse to one method of seeking a remedy in another Court was necessarily debarred from invoking other available remedies in Superior Courts which are not of exactly the same in nature, particularly, since the appellants could have also come up to this Court by way of special leave to appeal from the order of the High Court itself and in the event of such leave being granted, the appeal would, for alt intents and purposes, have been an appeal against the order of the Member, Board of Revenue. I see no reason, therefore, for debarring any person of the right given to him under Article 160 of the late Constitution merely because other alter native methods of seeking relief against the impugned order were also avilable. This appeal cannot, therefore, be barred because no appeal has been filed aga inst the order of the High Court. The order of the High Court will take effect subject to the decision of this Court and, as such, there can be no question of any conflict of decisions either. On behalf of the appellants it was, in the course of argu ments, insinuated that the action of the Regional Transport Authority in refusing to entertain the applications of the appellants after having invited applications from any and every one and compelled them to, deposit the requisite fees of Rs. 100 with each application, savoured of some kind of improper dealing. I am not prepared to go so far, but I cannot help observing that if the Regional Transport Authority had, as a question of policy, decided that it would not issue any stage carriage permits to individuals, the proper course to adopt would have been to return the applications of those who refused to form themselves into a company along with the deposits made by them, and then to invite fresh applications from companies only. For the reasons given above I would allow this appeal, set aside the order of the Regional Transport Authority passed on the 13th of December 1960, and direct it to consider the applications of each and every one of the applicants on merits in accordance with law and in the light of the considerations mentioned in section 47 of the Motor Vehicles Act. It will be open to it, after taking all these factors into account and hearing the representations, if any, made to reject all applications on the ground of public interest, if it considers that none of the applicants would be in a position to advance that interest. Having done so, it can then, if it so desires, invite applications from limited liability com panies, but again the same must be dealt with in accordance with law. Since the respondent‑company has been running stage carriages on this route since 1961, this order may cause the existing facilities to be disturbed with resultant inconvenience to the general public and I would like, therefore, to add the suggestion that the service provided by the respondent Ittehad Transport Service Company Limited may perhaps be continued pro tempore by issuance of temporary permits under section 62 of the Act until the fresh applications have been dealt with and the position regularised. The appellants will also get costs of the appeal in this Court. This appeal is allowed, with costs. The order of the 11th March 1961 by the Member, Board of Revenue, West Pakistan, is set aside, and in its place, we substitute an order setting aside the order of the 13th December 1960, made by the Regional Transport Authority, and direct that Authority to deal afresh with the applications which were before it on that date, after giving due notice to the applicants, and in accordance with law. A. H.