P L D 1964 (W (PLP)

2. The circumstances under which this reference has been made by the Division Bench are these : The Regional Transport Authority, Hyderabad invited applications for the grant of one stage carriage permit for the route described as Shahdadpur Shahpur Chakar via Chowdagi. In response to this invitation the petitioner Messrs Tando Adam Transport Co. Ltd. and the respondent No. 3 Messrs Chowdhry Transport Co, Ltd., amongst others, applied for the said route permit. The R. T. A. after receiving objections and hearing the parties granted the permit to the petitioner at its meeting held on 19‑4‑

62. The applications of the other parties including the respondent No. 3 were rejected. Being aggrieved by the grant of the permit to the petitioner and the rejection of its application the respondent No. 3 preferred an appeal before the Member, Board of Revenue, Government of West Pakistan, Lahore. On 13‑7‑62 the Member, Board of Revenue, respondent No. 1, after hearing the parties maintained the order of the R. T. A. whereby the permit had been granted to the petitioner but further ordered that the respondent No. 3 may be granted another permit on the same route. This having been done, the present petitioner filed this petition in this Court under Article 98 of the Constitution challenging the validity of the order passed by the Member, Board of Revenue, West Pakistan. This petition came to be heard by the Division Bench consisting of Khamisani, J. and Kharal, J. Before them it was contended that the power to fix the number of permits lay exclusively in the R. T. A. and the Appellate Authority, namely the Board of Revenue who while deciding an appeal which lies to them under section 64 of the Act, had no authority to increase the number fixed by the R. T. A. Reliance in support of this contention was placed upon a decision of the Supreme Court of India in the case of Abdul Matin v. Ram Kailash (A I R 1963 S C 64) and certain observations of our own Supreme Court in the case of Ikram Bus Service v. Board of Revenue (P L D1963 S C 564). The learned Judges of the Division Bench were inclined to the view which was canvassed before them on behalf of the petitioner but they found difficulty in recording that decision in view of an order by another Division Bench in Umarkot Transport Company v. Board of Revenue Writ Petition No. 19 of 1962 in which while dismissing the petition summarily it was observed that the question whether the number of permits should be raised was purely discretionary and the Appellate Authority could also exercise that power. They learned Judges of the Division Bench, before whom the present petition had come, referred the two questions stated above for, consideration by a Full Bench in view of the decision of a Full Bench of this Court in the case of Murad All v. Collector of Central Excise (P L D 1963 Kar. 280) wherein such a course was indicated to avoid` conflict of decision between two Benches.

3. The case having come before us we have heard Mr. P. M. Amer for the petitioner and Mr. Salim Chowdhry for the respondent No.

3. The respondents 1 and 2, namely the R. T. A. and the Board of Revenue have not chosen to resist this petition. The two questions which have been referred to us are intimately connected and can be dealt with together.

4. We may now refer to the relevant provisions of the Motor Vehicles Act. Section 45 provides that every application for a permit shall be made to the R. T. A. of the region con cerned. Section 46 enumerates the particulars which an application for a permit to use a motor vehicle as a stage carriage is to contain. Section 47 lays down the considerations having regard to which the Regional Transport Authority is to decide whether to grant or refuse a stage carriage permit. Section 48(a) empowers the R. T. A. to limit the number of stage carriages for which stage carriage permit may be granted and clause (b) further empowers it to issue a stage carriage permit in respect of a particular stage carriage or a particular service of stage carriages. Section 57(3) provides the procedure which the R. T. A. must follow before deciding the application for stage carriage permit. Under it the R. T. A. on receipt of an application for a stage carriage permit is required to make that application available for inspection at the office of the Authority and to publish it or its substance in the prescribed manner together with a notice of the date before which the representation in connection therewith may be submitted and the date on which the applica tion and the representation, if any, is to be considered.

5. The appeal to the prescribed authority against the decision of the R. T. A. is provided by section 64 which reads as follows "

64. Any person‑ (a) aggrieved by the refusal of the Provincial or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or (b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or (c) aggrieved by the refusal to transfer the permit to the person succeeding on the death of the holder of a permit, or (d) aggrieved by the refusal of the Provincial or a Regional Transport Authority to countersign a permit, or by any condition attached to such countersignature, or (e) aggrieved by the refusal of renewal of a permit, or (f) being a local authority or police authority or an associa tion which, or a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto, or (g) being the holder of a licence, who is aggrieved by the refusal of a Regional Transport Authority to grant an authorization to drive a public service vehicle, may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard."

6. The power to limit the number of stage carriages for which permits may be granted is given to the R. T. A. under clause (a) of section

48. Where the R. T. A. does not invite applications for a particular number of permits and the parties who want to serve a certain route or routes themselves apply for the grant of permit, the number of the permits to be granted would naturally be limited at a later stage after the receipt of the applications in that regard. But where, as in the present case, the R. T. A. itself invites applications and advertises the route and the number of permits which it is going to grant, the limit contemplated by section 48(a) would normally be fixed in the advertisement itself whereby applications are invited. This is the practice which is now followed. In the present case the notice which was published by the R. T. A. and which is at page 29 of the record, whereby applications were invited on the prescribed form and against the route in question, the number of permit to be granted is stated to be only one. This limit has clearly been fixed by the R. T. A. under the power given to it by clause (a) of section

48. Mr. Salim Chowdhry, the learned counsel for defendant No. 3, urged that the power under clause (a) of section 48 is with respect to the number of stage carriages and not with respect to permits. We are unable to accept this contention because the permit relates to a stage carriage or a particular service of stage carriages and when the R. T. A. says that it will issue only one permit, it means that only one stage carriage shall be permitted to be plied under that permit on the route against which it is granted. Therefore, where one permit is advertised for being granted it is intended that that permit shall attach to one stage carriage or to a particular service of stage carriages which would be entitled to use one of its stage carriages at a time upon the route against that permit. The question which then arises for consideration is that where such a limit has been fixed by the R. T. A. whether it is open to the Appellate Authority to grant a permit beyond the limit fixed by the R. T. A. The powers of the Appellate Authority are clearly defined in section 64 which have been reproduced above, and it can only act within the limits of those powers. It would be seen that no appeal against the limit fixed by the R. T. A. under section 48(a) is provided under section

64. The contention of Mr. Salim Chowdhry, however, was that his case is covered by clause (a) of section

64. It was argued that the respondent No. 3 having applied for the permit and that having been refused to him by the R. T. A. his appeal to the Member, Board of Revenue was competent and once that appeal was entertained it was open to the Appellate Authority either to grant to him the permit which was granted to the petitioner by the R. T. A. or another permit on the same route.

7. There can be no quarrel with the first part of the contention of the learned counsel, and nobody says that the appeal of the respondent No. 3 to the Member, Board of Revenue against the refusal to grant a permit by the R. T. A. was not competent. But the real question is whether the Member, Board of Revenue while maintaining the permit which was granted to the petitioner was empowered to grant another permit to the respondent No.

3. That question, in our opinion, must be answered in the negative. In the first place the Appellate Authority could not grant another permit unless it increased the B number from what had been fixed by the R. T. A. That power they did not have. Under section 48(a) the power to limit the number is given only to the R. T. A. Then it is clear from the scheme of the Act that it was not intended that the Appellate Authority should exercise such a power because if it did so, it would render several of the provisions referred to above more oil less nugatory. For instance, before a permit can be granted there has to be an application by the person wanting it. In the present case, the application of the respondent No. 3 was for that one permit which was advertised by the R. T. A. in its notice dated 23rd November 1961. That permit was granted to the petitioner and the respondent No. 3's application in that regard was rejected. When the matter came before the Board of Revenue the grant of permit to the petitioner was upheld and another permit was granted to the respondent No. 3.‑ For this second permit on the same route there was no application. Then the procedure con tained in sections 47 and 57(3) regarding the making of represen tations by local authorities or by persons already providing road transport facility along or near the route, is one of the essential requirements of the Act before the grant of a permit to a person who may have applied under section

46. This requirement cannot be fulfilled if an additional permit is issued by the Appellate Authority, the application in respect of which had neither been published as required by law nor any opportunity was given for making representations against it. To by‑pass these requirements would offend against the important provision of the Act and lead to strange results. For instance, an owner of a stage carriage service while he might be anxious to serve a route if there was to be only one permit and might apply for it, he might not like to do so if more than one permit was going to be granted on that route. He might find it uneconomical. Likewise, if it was advertised that only one permit was going to be granted there might be no opposition to it by the local authority or by the person already serving upon that route. But if more than one permit were advertised that might be opposed, both in public and private interest. Such an opposition could only be possible if th‑. representation in that regard was made as provided by sections 47 and 57(3). None of these things could be done at the stage of appeal. There is no provision for it. Therefore, when an appeal is preferred under section 64(a) the Appellate Authority must limit its decision to the number fixed by the R. T. A. under section 48(a).

8. Mr. Salim Chowdhry next contended with reference to clause (f) of section 64 that the Appellate Authority had power to decrease the number of permits and it was urged that if it had that power, it must also be held to have the power to increase it. There is no force in this argument. Clause (f) merely enables a party to take an appeal to the Appellate Authority if its representation contemplated in section 47 has been rejected by the R. T. A. that is, if a representation is made by a local authority or a person providing transport facilities against the grant of a permit and the permit is granted notwithstanding that opposition the party aggrieved would have the right to go in appeal. Section 64 (f) therefore merely provides a class of case In which an appeal is permitted. It does not give the power to the Appellate Authority to increase the limit fixed by the R. T. A. under section 48(a).

9. Mr. Chowdhry relied upon two Indian cases in support of his contention. The first of these is a decision of the Rajasthan High Court in the case of Automobile Transport Limited v. Nathuram Mirdha (A I R 1959 Raj. 121), wherein it was held that it was open to the Appellate Authority to increase the number of permits beyond the limit fixed by the Regional Authority under section 48(a). This case was overruled by the Supreme Court of India in the case of Abdul Malin v. Ram Kailash and in which the view of the Allahabad High Court in the case of Muhammad Luqman v. State Transport Authority (A I R 1961 All. 342) was held to be the correct one. The Allahabad High Court had held that section 64 of the Act did not allow any appeal against the order of the Authority limiting the number of stage carriages. In taking this view it had expressly dissented from the view taken by the Rajasthan Court. The Supreme Court of India in the case mentioned above held that‑ "Where a limit has been fixed under section 47(3) (the former section 48(a)) by the Regional Transport Authority and there after the said authority proceeds to consider applications for permits under section 48 read with section 57, the Regional Transport Authority must confine the number of permits issued by it within those limits and on an appeal or revision by an aggrieved person the Appellate Authority or the Revisional Authority must equally be confined to the issue of permits within the limits fixed under section 47(3)." Mr. Chowdhry relied upon another decision of a Full Bench of the Kerala High Court in the case of Balakrishna v. State Transport Appellate Tribunal (A I R 1963 Kerala 1). This case was decided shortly after the decision of the Supreme Court and that decision was not brought to the notice of the learned Judges of the Kerala High Court. Their decision supports Mr. Chowdhry but it cannot be considered good law in view of the decision of their own Supreme Court. For the reasons given above we do not, with respect agree with the view taken by their Lordships in the Full Bench case of the Kerala High Court.

10. In the case of Ikram Bus Service v. Board of Revenue (P L D 1963 S C 564), it was held 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 Appellate Authority to grant or refuse a stage carriage permit. It was further held that under section 47 the Regional Transport Authority is bound to take into con sideration any representation which may be made as provided by that section ; that section 57 contains a detailed procedure in respect of these applications and 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. These observations would apply to the present case inasmuch as the application of the respondent No. 3 for the advertised permit having been rejected and that rejection having been upheld by the Board of Revenue, there was no application upon which another permit could have been granted to it. Such a grant would be disregard of the procedure provided by sections 47 and 57.

11. In view of our conclusion our answer to the first question referred to us by the Division Bench is that the limit fixed by the R. T. A. under section 48(a) of the Act regarding the route permits cannot be questioned in appeal. Our answer to the second question is that the Board of Revenue in an appeal against the refusal to grant a permit, cannot increase the number of permits so as to grant one to the appellant. The case will now go back to the Division Bench. K. B. A. Reference answered.