MUHAMMAD QASIM KHAN, J. --- With the concurrence of learned counsel for the parties, this case is being- decided as PAKKA case.
2. Briefly the facts are that one Malik Abdul Qayum (predecessor in interest) of respondents No. 2 and was running a transport business with the name of Minhaj ravels under a D class Stand Licence as provided by the Motor Vehicle Rules, 1969. Subsequently . the said Licence was revoked by the Regional Transport Authority . whereupon Malik Abdul Qayum brought a constitutional petition No. 1 273/2009-BWP before third Court and on 07.04.2009 the learned counsel representing the petitioner of said writ petition came up with the plea that his appeal already pending before the Chairman, Provincial Transport Authority , whereupon, this Court disposed of the writ petition by directing the Chairman, Provincial Transport Authority to decide the appeal of the petitioner Malik Abdul Qayum expeditiously . The said appeal was dismissed by the Provincial Transport Authority on 24.6.201Q, which order was assailed on behalf of Minhaj Travels through W.P.No. 4091/2010-13W P but on 28.10,20 1 0 the learned counsel on behalf of the petitioners in the said writ petition, opted not to press the writ petition as according to him the petitioners had availed the alternate remedy, as such, no grievance was left with them, the writ petition was disposed of It so happened that one day before the making of above statement and withdrawal of W.P.NO. 4091/2010- BWP , the present private respondents filed an R.O.R.No. 94/2010 before the Member (Judicial) Board of Revenge, Punjab, Lahore, under Rules 96-A and 97 of the Motor Vehicle Rules, 1969 against the decision of Provincial Transport Authority dated '24.6.2010. Precisely , the filing of this R.O.R before the Member Board of Revenue and taking of cognizance/ assumption of jurisdiction by the said authority on that. R.O.R is the grievance which has been voiced by the petitioner through the instant constitutional petition.
3. In support of this writ petition, the learned counsel for the petitioner argued that against the order passed by Regional Transport Authority a right of appeal has been provided in Rule 96 of Motor Vehicle Rules, 1969 and the Chairman, Provincial Transport Authority is to hear and decide the appeal, against whose order passed under Rule 96; ibid. no second appeal has been provided. The learned counsel took an exception that where the matter is decided by the Provincial Transport Authority in its original jurisdiction then appeal would lie before the Member Board, of Revenue. According to the learned counsel there is distinction in Rule 96 and 96-A of Motor Vehicle Rules, 1969 and when Rule 96 is read with rule 267, ibid. it will become clear that he order of Chairman, Provincial Transport Authority on an appeal against the order of Regional Transport, Authority is final and no further remedy of appeal is available. The learned counsel therefore, derives that in this case the appeal filed by the respondents before the Member Board of Revenue is against the prescribed procedure, whereas, no such remedy is available to the respondents.
4. The learned counsel contended that Member Board of Revenue has assumed the jurisdiction under Rule 96-A of the Motor Vehicle Rules, 1969 illegally while taking up R.O.R.No. 94/2010, although an application was filed before the Member (Judicial) Board of Revenue, Punjab. Lahore in the abovementioned R.O.R pointing out that the same was not maintainable and the Member Board of Revenue had no jurisdiction to entertain and decide it. but in the presence of that application, the learned Member Board of Revenue vide order dated 27.10.2010 went on to pass an-injunctive order in favour of the private respondents. A copy of the application along with an affidavit of the learned counsel and order of the learned Member Board of Revenue have been brought. on the record. The learned counsel further argued that when the learned Law Officer of this Court asked the Member Board of Revenue to submit his report, the M.B.R vide a letter dated 5th of November , 2010 (copy mailable on record) stated "R.O.R No. 94/2010 has been filed by Malik Ahmad Minhaj under Rules 96-A of the Motor Vehicle Rules, 1969 as substituted by Punjab Notification No. 1154-71/1099-TI dated 07.08.1971 against the order dated 24.06.2010 and 10.06.2009 passed by Punjab Provincial Transport (Appellate) Authority Lahore and District Regional Transport Authority District Bahawalnagar . The revision petition has been taken cognizance of accordingly in terms of above provision of law and would be decided on merits." According to the learned counsel the reply of the Member Board of Revenue, is sufficient evidence of the fact that said authority has taken the cognizance and is now adamant to decide the same on merits, despite the fact that under Rule 96-A the appeal is not maintainable nor the Member Board of Revenue has any jurisdiction. The learned counsel therefore, argued when some authority entertains a matter which is beyond his jurisdiction and such proceedings are based on malafides, this Court has ample jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to decide the same. In support of his assertions the learned counsel placed reliance on the case "CHIEF JUSTICE OF PAKIST AN IFTIKHAR MUHAMMAD CHAUDHR Y versus PRESIDENT OF PAKIST AN through Secretary and others" (PLD 2010 SC 61 ).
5. The learned Additional Advocate General in the light of reply submitted by the Chairman, Punjab Provincial Transport Authority adopted the arguments, as had been advanced by learned counsel for the petitioner , whereas, on the Other hand, learned counsel representing the private contesting respondents submits that point of jurisdiction is to be decided by the same authority , before whom any matter is brought for adjudication, otherwise, it would result in causing prejudice to the respondents as it this Court ultimately decides the question of jurisdiction, the respondents would be deprived of one right of appeal further argued that Section 66 of Motor . Vehicle Ordinance, 1967 deals as to what order is appealable before which authority and Rule 197-C of Motor Vehicle Rules, 1.969 provides that any person aggrieved by an order of the Provincial Transport Authority , may within thirty days of receipt of the order , may file appeal to the Appellate Authority as prescribed in Rule 96-A i.e. Board of Revenue. According to the learned counsel in this case the Board of Revenue being the authority' can validly hear and decide an appeal filed against the order passed by Provincial Transport Authority , therefore, there is no jurisdictional error in filing of appeal or taking of cognizance by the Member Board of Revenue. The learned counsel next argued that Chairman and the Provincial Transport Authority are not distinct to each other and where the word "Chairman" is used it means whole of the Provincial Transport Authority and when it is read so. its orders will be appealable before the Board of Revenue under Rule 96-A of Motor Vehicle Rules, 1969. Lastly , the learned counsel argued that petitioner may appear before the Member Board of Revenue Where the matter is sub-judice and plead his case there, The learned counsel placed reliance on the case "THE STATE through Federal Investigation Agency S.I.U. Islamabad versus Ch. SHUJAA T HUSSAIN and another" (1995 P.CrL.J. 701) and "SUL TAN INDUSTRIES versus THE AUTHORITY UNDER P AYMENT ACT and another" (1990 P .L.C. 357 ).
6. I have given anxious consideration to the arguments addressed by learned counsel for the parties at length and perused the entire available record in the light of relevant rules. law and the precedent case law .
7. In Motor Vehicle Ordinance 1969 two authorities have been provided, one is Provincial transport: Authority and, the second is Regional Transport Authority: The duties and functions of both these authorities arc different and to better appreciate the above contentions, a table showing comparative study of their respective duties and functions, is drawn as under: PROVINCIAL TRANSPOR T AUTHORITYREGIONAL TRANSPOR T AUTHORI'I'Y A Section 46(6): "The Provincial Transport Authority shall exercise and discharge the following powers and functions:
(i) To coordinate and regulate the activities and policies of the Regional Transport Authority;
(ii) To perform the duties of Regional Transport Authority;
(a) Where there is no such authority , or b) Where there is such authority , if it thinks lit so to do and if so, required by that authority .
(iii) To settle all disputes and decide all matters on which differences of opinion arise between the Regional Transport Authority; and
(iv) To discharge such other functions as may be prescribed.
Section 46(7) and (8):- ASection 17(1) of the Motor Vehicle Ordinance 1965:- "A Regional Transport Authority constituted under Chapter IV may. for reasons to be recorded in writing and subject to any prescribed conditions declare any person disqualified, for a specified period, for holding or obtain in a license to drive a transfer vehicle in the Province."
B Section 46(7) and (8): "46(7): The Provincial transport Authority may; subject to such conditions as may be prescribed issue to the Regional transport Authority such orders and directions, of a general character inBSection 64(1) of the Motor Vehicle Ordinance, 1965:- "The Regional Transport Authority may grant special permits, to be effective for one return trip only, authorizing the use of a motor vehicle for that trip respect of road transport as it may deem necessary and the Regional Transport Authority shall give ef fect to all such orders and directions.
(8): The Provincial Transport Authority and any Regional Transport Authority, if authorized in this behalf by rules made under section 69, may delegate such of its powers and functions to such authority or person and subject to such restrictions, limitation and conditions as may be prescribed by the said rules.as a public service vehicle."
C Rule 57(A)(ii) (Punjab Substitution) of the Motor Vehicle Rules, 1969: - The Provincial Transport Authority shall classify the route(s) which originate and terminate in the jurisdiction of more than one The Regional Transport Authority into A", B" and "C" categories for stage carriage permits on the basis of density of traffic and conditions of the roads." CRule 57(A)(i): "The Regional Transport Authority shall classify the route(s) which originate terminate within the region." D Rule 62 of Motor V ehicle Rules, 1969:- "A Regional Transport- - Authority may by general or special resolution recorded in its proceedings and subject to the restrictions, limitations and conditions and herein specified, delegate to the Chairman, Regional Transport Authority or Secretary , Regional Transport Authority all or any of its powers namely:-
(i) Power under section 17 to disqualify a person for holding or obtaining a license to drive a transport vehicle;
(ii) Power under section 44 and 52 to grant a contract carriage permit;
(iii) Power under section 44 and 53 to refuse a contract carriage permit, in cases where no representations are received to grant with or without modification such an application, and attach conditions to the permit;
(iv) Power under section 54 to grant a private carrier's permit;
(v) Power under sections 44 and 57 to grant with or without modifications a public carrier's permit and power to attach conditions under section 58 or vary the conditions thereof:
(vi) Power to attach to a stage carriage permit condition under sub section
(2) section 5D:
(vii) Power to renew private carrier's permits. public carrier's permits contract carriage permits and stage carriage permits under" section 60 and to renew counter signatures of any such permits;
(viii) Power under sub section
(2) of section 61 to permit the replacement of one vehicle by another:
(ix) Power under section 62 to suspend permit: or
(x) Power to grant stage carriage permit. ERule 179:- "Every company of cooperative society which operates a fleet of transport shall paint such vehiclesaccording to the pattern and a particular color scheme approved and registered before hand by the Regional Transport Authority concerned. The particulars of the colour scheme shall be entered in the permits and no the company or society shall be entitled, to painting vehicles according to a colour scheme adopted by the 'road Transport Authority, another company or Society in the Province." FRule 224(4): "A Regional Transport Authority or any of its officers, if so, authorized by it, may by order in writing, in emergent cases, exempt any motor vehicle for such period and subject to such conditions as may, be specified from any or all of the provisions of this rule." GRule 253(2): "The Regional Transport Authority may, in consultation with the local authority having jurisdiction concerned, make an order in the prescribed form (Form Stand A. Form Stand F,.
Form Stand C, and for stand D permitting any place so be used as a stand and without such an order no place shall be used.
Provided always that no place which is privately owned shall be notified as stand save on application by or with the written consent of the owner. HRule 253(5): "The Regional Transport Authority shall, from time to time, fix the fees or the maximum fees payable of every stand of Class, A, B or C." IRule 254(1): "The Regional Transport Authority may, in consultation with the District Magistrate having jurisdiction in the area concerned make an order in the prescribed form (Form FAL) permitting any place to be used for loading, unloading or halting the motor vehicle used for the carriage of goods for hire or reward. JRule 254(4): "The Regional Transport Authority may at any time revoke any order made by it under sub-rule (1) if in its opinion any of the. conditions under which a place is to be used for the loading, unloading or halting of goods vehicles has been contravened or if the continuance of the said order is no longer in the public interest: Provided that before revoking the order, Regional Transport Authority shall give the Forwarding Agent concerned an opportunity of being head and shall record its reasons in writing."
It may be of relevance to point out that Government of the Punjab, Transport Department vide Notification dated 12th of March, 1987 constituted the Punjab Provincial Transport Authority , as under:- 1 Secretary to Government of the Punjab, Transport Department.Chairman 2Secretary to Government of the Punjab, Communications & Works Department.Member 3The Chief (Transport) to Government of the Punjab, Planning & Development Department.Member 4Deputy Inspector General of Police, (Traffic). Punjab, Lahore.Member 5The Secretary, Punjab Provincial Transport Authority.Secretary/ Member The Regional Transport Authority for Bahawalnagar District was reconstituted by the Government of the Punjab, Transport Department vide Notification No. SOTR-1/5-4/2000, as under:- 1DCO Bahawalnagar District BahawalnagarChairman 2District Police Of ficer Member 3DO Services Member 4Secretary, RTA Secretary/Member
8. Now the question arises, whether an order passed under Rule 96 of Motor Vehicle Rules, 1969 could be considered as an order passed by Provincial Transport Authority , or not? in rule 96 it has been specifically mentioned that authority to hear and decide the appeal against an order of the Regional Transport Authority , shall be the Chairman, Provincial Transport Authority . The Chairman alone cannot sit as Provincial transport Authority , because as mentioned above as a compact the Provincial Transport Authority consists of five members and Chairman is one of its Member only, hence any act or order of the Chairman while sitting individually cannot be said an order of whole of the Provincial Transport Authority . There is distinction in Rule 96 and 96-A of the Motor Vehicle Rules, 1969. Rule 96, ibid is limited to the appeal filed against the order of Regional Transport Authority and Rule 96-A was added to provide a right of appeal against the order passed by Chairman, Provincial Transport Authority in its original jurisdiction. The Member Board of Revenue has only jurisdiction to hear an appeal against the order passed by Provincial Transport Authority in its original jurisdiction and not against an order passed by the Chairman Provincial transport Authority in appellate jurisdiction. Rule 267 of Motor Vehicle Rules, 1969 makes it very clear that any person aggrieved against the order of Regional Transport Authority sanctioning the establishment of a stand or revoking or modifying an order permitting the establishment of a stand, may, within thirty days of the receipt of the order , may file appeal to the appellate authority as prescribed in rule 96, whose orders thereon shall be final and conclusive. When Rule 96 is read with Rule 267 of the above Rules, it would make clear that an order passed by the Chairman, Provincial Transport Authority' is final and no right of appeal has been provided by the statute and jurisdiction of the Board of Revenue is only in the matters decided by the Punjab Transport Authority in its original jurisdiction, and the Board of Revenue has no jurisdiction to entertain an appeal under Rule 96-A of the Motor Vehicle Rules. 1969 against an order passed by the Chairman. Provincial Transport Authority . In this behalf 1 would seek guidance from a judgment -MUHAMMAD ASLAM versus CHAIRM AN, PROVINCIAL TRANSPOR T AUTHORITY , Civil Secretariat Quetta and 2 others" (1996 C.L.C. 630), whereby a learned Division Bench of the Quetta High Court, held as under:- "Appeal against order passed by Chairman, Provincial Transport Authority would be competent before Board of Revenue, if former had acted under original jurisdiction No appeal would lie where order by Chairman, Provincial Transport Authority had been, passed in exercise of appellate jurisdiction. confer red upon him under S.66, West Pakistan Motor V ehicles Ordinance, 1965."
9. All the Courts/T ribunal/Authorities before entertaining any matter or assuming jurisdiction have themselves to- see whether jurisdiction vests in them to entertain and decide the matter brought before them. In this case as earlier held under rule 96-A-of the Motor Vehicle Rules, 1969 the Board of Revenue had no power to entertain the appeal of the contesting respondents against the order passed by Chairman. Provincial 'Transport Authority under rule 96 and the matter of jurisdiction was also abruptly confronted by the petitioner to the Member Board of Revenue by filing a proper application, despite that the Member Board, of Revenue entertained the appeal and passed an injunctive order , which impliedly shows that as a matter of fact the Member Board of Revenue assumed the jurisdiction, which fact further finds support by the letter written by Member (Judicial-1 1), Board of Revenue addressed to the learned Law Officer of this/Court, wherein, he categorically mentioned that he has taken the cognizance in R.O.R.No. 94/2010 filed by the private respondents and it would be decided on merits. As such, there remains no ambiguity that the Member Board of Revenue had in fact turned down the objection raised before him by the petitioner and impliedly assumed the jurisdiction. Therefore. it cannot be said that /question of jurisdiction was either not raised before the said forum or was not decided by it.
10. As regards the case law cited by learned counsel for the private respondents , which undoubtedly holds that objection regarding jurisdiction of any Court. Authority or Tribunal must of necessity be taken by a party-at earliest possible time before the forum where the matter is pending. But, as has been held by this Court in the preceding: paragraph the writ petitioner did raise the specific objection with regard jurisdiction before the Member Board of Revenue by moving a proper application, but the Member Board of Revenue without deciding the question of jurisdiction proceeded to entertain the appeal of the private respondents and also in the letter addressed to the Learned Law Officer of this Court, it was made clear by the Member Board of Revenue that cognizance has been taken and the appeal has to be decided on merits. Therefore: as a matter of fact, the guidelines settled in the above referred cases, have been duly met with in the case in hand, as such, in the peculiar facts and circumstances of the case in hand, as discussed above, the cited case law is also much avail to the. official respondents.
11. For what has been discussed above, this writ petition is allowed and it is held that Member Board of Revenue has no jurisdiction to entertain an appeal against the order of Chairman, Provincial Transport Authority and when a specific objection was raised before him with regard to his jurisdiction, an injunctive order passed by the Member Board of Revenue and his reply to the learned Law Officer, reproduced above, clearly shows that the Member Board of Revenue erred in law by impliedly assuming the jurisdiction and taking cognizance of the R.O.R. As such. the proceedings before the Member Board of Revenue in R.O.R.No. 94/2010 being without jurisdiction are quashed.