P L D 1959 (W (PLP)

KAIKAUS, J.

‑In a meeting of Regional Transport Authority, Multan, held on the 23rd and 24th of July 1956, eight permits for the Chichawatni‑Burewala route were granted to the Burewala Bus Service, Limited, the petitioner in this writ petition. The United Hansi Bus and Transport Company Limited, respondent No. 2, had already been allowed twelve permits for that route and the Punjab Road Transport Board was also plying its vehicles on routes of which this route was a part. On the 20th of September 1955, the Punjab Government, probably in view of the adverse effect on the Road Transport Board of the grant of these eight permits, cancelled them by virtue of powers it possessed under section 43 (4) (a) of the Motor Vehicles Act. This was by means of a notification No. 4404‑Transport‑55/33738 by which fifty‑two permits in all on various routes were cancelled. The petitioner applied subsequently for permits on the Chichawatni Head Palla via Burewala route and was granted three permits on the 9th of December 1955. The Chichawatni‑Burewala route, it may be stated, is a part of the Chichawatni Head Palla via Burewala route. The first‑mentioned route is of about thirty miles and the second of about sixty miles.

2. Against the grant of these three permits, appeals were filed by the Muslim Vehari and Vehniwal Bus Service, which is respondent No. 2 in this case, and the United Hansi Bus and Transport Company, respondent No.

3. The appeal of respondent No. 3 was disposed of by Mr. Nasir Ahmad, Member Board of Revenue, on the 23rd of March 1956. Two out of the three permits of the petitioner were cancelled by the appellate order. On the 25th of June 1956, Mr. H. A. Majid, Member Board of Revenue, heard the appeal of respondent No. 2 and cancelled the remaining one permit on the ground that as the Punjab Govern ment ‑had cancelled the permits of the petitioner on the Chichawatni‑Burewala route, the Regional Transport Authority had no jurisdiction to grant permits for routes of which that route was a part. The present writ petition is directed against this order of Mr. H. A. Majid. Originally the only respondents to the writ petition were Mr. H. A. Ma jid and the Muslim Vehari and Vehniwal Bus Service Limited. Later, however, vide order of the' Court the United Hansi Bus and Transport Company Limited and 'A the Province of West Pakistan were added as parties.

3. The attack on the order of Mr. H. A. Majid is that he had refused to exercise jurisdiction in the matter of grant of permits on the erroneous assumption that the Regional Transport Authority (and, therefore, the Appellate Authority) were debarred from granting any permits on the route. This assumption, it is stated, was erroneous because (1) the notification of the Govern ment dated the 20th of September 1955 was void in law, being not in accord with section 43 (4) (a) of the Motor Vehicles Act, and (2) even if the notification was valid, it could not and did not debar the Regional Transport Authority from issuing permits for a route just because it included a route for which its permits had been cancelled.

4. Section 43 of the Motor Vehicles Act runs :‑ 43. (1) A Provincial Government, having regard to‑ (a) the advantages offered to the public, trade and industry by the development of motor transport, and (b) the desirability of co‑ordinating road and rail transport, and (c) the desirability of preventing the deterioration of the road system, and (d) the desirability of preventing uneconomic competition among motor vehicles, and after having heard the representatives of the interests affected and having consulted the Provincial and Regional Transport Authorities concerned, may, by notification in the Official Gazette, (i) prohibit or restrict throughout the province or in any area or on any route within the province, subject to such con ditions as it may think desirable, the conveying of long distance goods traffic generally or of prescribed classes of goods, by private or public carriers ; or (ii) fix maximum or minimum fares or freights for stage carriages and public carriers to be applicable throughout the province or within area or on any route within the province. (2) The Provincial Government shall permit, at such intervals of time as it may fix, the interests affected by any notification issued under subsection (I) to make representations urging the cancellation or variation of the notification on the following grounds, namely:‑-- (a) that the railways are not giving reasonable facilities or are taking unfair advantage of the action of the Provincial Govern ment under this section ; or (b) that conditions have changed since the publication of the notification ; or (c) that the special needs of a particular industry or locality require to be considered afresh. (3) If the Provincial Government, after considering any repre sentation made to it under subsection (2) and having heard the representatives of the interests affected and the Provincial and Re gional Transport Authorities is satisfied that any notification issued under subsection (1) ought to be cancelled or varied, it may cancel the notification or vary it in such manner as it thinks fit." (4) Notwithstanding anything in the foregoing subsections, the Provincial Government may by a notification under this sub section‑ (a) cancel generally or in relation to a specified area any permit or class of permits granted under this Chapter in respect of transport vehicles in order to enable the Road Transport Board to use its transport vehicles on the routes thus rendered vacant ; and (b) give effect to the term of any agreement entered into with the Central Government relating to the regulation of motor transport generally and in particular to its co‑ordination with railways. The contentions of the petitioner on the first ground of attack are (a) that the permits could be cancelled only in order that the Road Transport Board may continue to ply its own vehicles, but this was not the intention of the notification, and (b) that under section 43 there was no power in the Government to cancel only some of the permits for a particular route.

5. The first of these two contentions may be shortly disposed of. There are no proper allegations in the petition that the Government's intention in cancelling the permits was not to enable the Road Transport Board to ply its vehicles. Learned counsel for the petitioner relies upon paragraph 9 (e), but that obviously does not include such an allegation and the matter does not require any further discussion.

6. In order that the second ground as to the invalidity of the notification may be appreciated, it is necessary to state the effect of some of the provisions of the Motor Vehicles Act. In accor dance with section 42 of the Act, no owner of a vehicle can ply the vehicle on any public place save in accordance with a permit granted by a Regional or a Provincial Transport Authority. By an amendment in 1951, a provision was made for the operation of a transport service by the Provincial Government. If the Provincial Government wanted to operate a service, it had to constitute a Road Transport Board. In order that the Road Transport Board may be able to ply its vehicles, power was given to the Provincial Government by section 43, which has been reproduced above, to cancel permits issued to other persons, and the effect of the cancellation of these permits was provided for in section 43‑B.

7. For .the proposition that section 43 does not entitle the Provincial Government to cancel only a part of the permits granted for a route, learned counsel for the petitioner relies upon two arguments. The first is that the words used in section 43 are "routes thus rendered vacant." The second is that according to the scheme of the Act, the question as to who, out of private concerns, is to be granted permits on a particular route, is a matter to be decided by the Regional Transport Authority and not by the Government.

8. Under section 43 (4) (a) the Government is entitled to cancel "any permit or class of permits". The words used are wide and contain no limitation or condition as to the necessity of cancelling all permits on a particular route. The stress of learned counsel for the petitioner is on the word "vacant". According to him, in order that a route may have been rendered "vacant", it is necessary that hence forth no person should possess any permit for plying a vehicle on it. Now, in the first place, it will be observed that this word occurs only where the effect of the cancellation of any permit or class of permits is stated, but over looking that matter for the present it cannot be said that the word "vacant" will apply only where all the permits are cancelled. The word "vacant" may also apply to a case where a route is rendered only partially vacant. The words "routes thus rendered vacant" are quite capable of being interpreted to mean "the vacancy thus caused in the route". In fact, if we go into the matter a little deeper, it will be found that this is the only possible construction that can be put on these words. This subsection speaks of any class of permits. It is admitted that there are three classes of permits, stage‑carriage permits, contract‑carriage permits and public carrier permits, and that permits of all the three classes could be cancelled under rule 43 (4) (a). Now, suppose the Government cancels on a particular route only the contract carriage permits. It is not denied by learned counsel for the petitioner that it was open to the Government to cancel only this class of permits. If only contract‑carriage permits were cancelled and the stage‑carriage permits and public‑carrier permits remained, could the route be said to be vacant ? If vacant means that no permit is held in respect of it, it would certainly not be vacant: If the word "vacant" could be used in a case where permits of two kinds are still in existence, it means that the word refers only to the vacancy caused by the cancellation and there is no reason why this word should not be applied to a case where some only of the permits on a route are cancelled. If the route is "rendered vacant" in case one class of permits is cancelled, it is rendered vacant also if some of the permits are cancelled.

9. It is true that the result of the power granted by section 43 (4) (a) is to leave it to the Government to cancel some of the permits on a route without there being any proper material before it to decide as to which permits it should cancel. Suppose there are nine permits on a route and the Road Transport Board wants to ply only three vehicles so that three permits only are to be cancelled. There is no procedure by which the Government may decide as to which of three permits it would be proper to cancel. According to the scheme of the Act it is the Regional Transport Authority that decides about the persons to whom permits are to be granted and the Government is not the proper authority to decide the question. The Government has no material before it and there is no procedure for determining this matter by the Govern ment. However, the fact that an unreasonable result follows does not mean that the Government has not the power to cancel some of the permits. That power is clearly given to it by section 43 (4) (a) and the mere fact of an undesirable result cannot deprive it of that power. If it is for the Legislature to interfere and made suitable amendments to meet the situation that is created when some only of the permits are to be cancelled.

10. We may add here that not only is the language of section 43 (4) (a) wide enough but in reason there could be no particular ground why the power should have been so limited. The Road Transport Board may not be in a position to take full control of a particular route. It may want to ply only some vehicles on a number of routes. Also had been the intention to limit the power of the Government with respect to the cancella tion of permits, there is no reason why it should not have been expressly stated in section 43‑A that the Government will have no power to cancel only some of the permits granted on a particular route.

11. We turn now to the second of the two attacks on the order of Mr. H. A. Majid and in this attack there is force. Does the mere fact that the Government has cancelled permits on a par ticular route mean that henceforth permits cannot be granted at all for any route of which that route is a part ? We have asked learned counsel for the respondent to explain what exactly is his position. He says if permits are cancelled on a particular route, it does not mean that permits cannot be granted for any route of which this is a part. In reason, learned counsel could not say anything else, for if permits are cancelled on the Lahore‑Kamoke route, it would not mean that no permit can be granted for the Lahore‑Gujranwala, Lahore‑Rawalpindi, or Lahore‑Peshawar routes. The contention of learned counsel for the respondent is only this that the person whose permits have been cancelled cannot apply for permits for the longer routes in which the first route is included. The position taken up by the learned counsel is alto gether untenable. If everybody else is entitled to apply for the longer route, why is the particular person whose permits were cancelled debarred ? Was it on account of any misconduct of his that his permits were cancelled ? Obviously not. The Govern ment cancelled the permits just because it wanted the Road Transport Board to ply its vehicles on that route. Suppose the Government cancels all permits on a particular route. Why should the persons who held these permits be deprived from applying for permits on the longer routes in which that route is included although every other person is entitled to do so ? On the other hand, although the law does not make any such provision, they should be entitled to some consideration for the fact that without any fault of theirs their permits have been cancelled. We would not, therefore, agree with learned counsel for the respondent that just because the permits of the petitioners for the Chichawatni‑Burewala route had been cancelled, the Regional Transport Authority had no jurisdiction to grant permits on the Chichawatni. Head Palla‑via Burewala route.

12. We will proceed to consider now the order that should be passed in this case. There is an objection that neither the Regional Transport Authority nor the Appellate Authority were acting in a quasi‑judicial manner and, therefore, certiorari does not lie. This proposition we are prepared to accept. But mandamus will lie where an administrative tribunal does not per form the duty imposed on it by law. It is the right of every applicant to apply for a permit under the Motor Vehicles Act and his application has to be decided on the merits. In the present case the Appellate Authority was of the view that it was debarred from determining the grant of a permit to the petitioner on the ground that his permits in respect of another route had been t cancelled by the Government. This refusal to exercise jurisdiction was illegal and when an administrative body illegally refuses to ex ercise jurisdiction in a case where the interest of a person is affected, mandamus can be granted. We are not considering the question whether every person has a right to ply his vehicles on every public road and the Motor Vehicles Act only abridges that right., We will assume that the petitioner has no such right but the petitioner certainly has the right to have his application determined on the merits. That right is enforceable by mandamus.

13. It was contended on behalf of the respondent that this petition has become infructuous because three years have expired and the permit which was cancelled by Mr. H. A. Majid was on for a period of three years. The first point to be noted in this connection is that this case was first heard in the beginning of October 1958 when this objection was not available and the case was adjourned on the request of learned counsel for the respondents. But in any case there is more than one reason why , we should give a direction in this case in spite of the expiry of three years. The first is that if we give a direction as to the hearing of the appeal there will be a determination as to the right of the petitioner to a permit for the period of the permit in dispute and if the appeal is decided in its favour, it will grant to the petitioner a preferential right to have a permit for the next three years. It is provided in section 58 of the Motor Vehicles Act that the holders of a permit has a preferential right over those who do not hold a permit. The decision of the appeal would even now have a serious effect on the right of the parties. The second reason for issuing a mandamus is this. On account of the order of Mr. H. A. Majid, the Regional Transport Authority is not now prepared to consider the application of the petitioner for permits on the Chichawatni-Head Palla via Burewala route cat all. It has been debarred from doing so by the order of Mr. H. A. Majid. It is, therefore, necessary to issue a direction that the applications of the petitioner for the Chichawatni‑Head Palla‑via Burewala route should be determined on the merits.

17. We accept this petition and direct the Member, Board of Revenue, i.e., the Appellate Authority to rehear the appeal and decide the question of the right of the petitioner to get the permit in dispute At the same time we direct the Appellate Authority not of the petitioner for a permit or, the Chichawatni Head Palla via Burewala route on account of the cancellation of the permits on the Chichawatni‑Burewala route. A direction to the Appellate Authority will be effective as against the Regional Transport Authority also, because it is only on account of the decision of the Appellate Authority that the Regional Transport Authority is refusing to consider the application of the petitioner. There is no order as to costs. A. B. Petition accepted.