1. MUNAWAR AHMAD MIRZA, J.--Petitioner has called in question order dated 23-9-1986 passed by Secretary, Provincial Transport Authority, Baluchistan and order dated 31-3-1987 of Regional Transport Authority, Quetta.
2. Brief facts are that on -or about 27-10-1980 petitioner was granted permit No. 10 of 1980 by Respondent No.3 (i.e. Regional Transport Authority) for plying Bus No.ZB 1951, on 'Quetta-Zhob-- Quetta' route. It is the case of petitioner that aforementioned vehicle became unserviceable, therefore, by means of application dated 12-2-1986, he sought its replacement with other Bus bearing No. Z B-3334.
2. Record reveals that respondent No.l towards 8-9-1986 submitted an application to Secretary, Provincial Transport Authority, Baluchistan, praying for cancellation of petitioner's route permit on the following grounds:- (1)That Mr. Ahmed Shah s/o Malik Gal Hassan, has registered open truck ZBT 1951, upto 2-9-1986 by Motor Registering Authority, Zhob.
3. (2)That Mr. Ahmed Shah has obtained permit for Bus under No.10/80 dated 27-10-1980 which is unlawful. This truck has not yet been converted into bus.
4. (3)That he made an application to Tehsildar Zhob on 2-2-1986 that he has sold Road permit to Abdul Ghaffar son of Haji Adam Khan (ZBT 3334.) and re-supply has not been made as yet, and requested that re-supply may not be made.
5. It is therefore, requested that the Route permit to Abdul Ghaffar son of Haji Adam Khan (ZBT 3334), and re-supply has not been made as yet, and requested that re-supply may not be made."
6. It seems that some inquiry was conducted by Assistant Commissioner and Deputy Superintendent Police, Zhob on petitioner's application for replacement of vehicle dated 12-2-1986 wherein statements of some transporters were also recorded. It was noticed that Z.B. 1951 Model 1974 was 42 seater vehicle whereas proposed Mazda Bus No.ZB-3334 was only 26-seater. However recommendations were made to allow replacement as proposed by Secretary, Regional Transport Authority in his letter No. 164/P-1(II)RTA/1981, dated 12-2-1986.
7. In the meantime certain enquiries were made on the application of respondent No. l dated 8-9- 1986 whereby ultimately Secretary R. T. A. Without any notice to petitioner by means of letter No.48- STG/PTA dated 23-9-1986 recommended cancellation of petitioner's route permit. Which is reproduced below.
8. "Subject: Permit of Truck of Ahmed Shah son of Gul Hassan has been registered as Open Truck but permit has been obtained asBus and Registration not made as Bus nor the Truck converted as bus.
9. One Haji Abdul Haleem transporter of Quetta-Zhob has submitted an pplication to this Authority that Mr. Ahmad Shah son of MalikGul Hassan has obtained a route permit on Quetta-Zhob route as the vehicle is registered as Open Truck No.ZB(T)-1951 which is unlawful that the route permit cannot be granted for bus as the vehicle is an Open Truck.
10. 2 .Inthis regard a report was obtained from the Registration Authority, Zhob through the Director Excise and Taxation, Baluchistan about the clarification of the objection of theapplicant .The Registration Authority has reported that the said vehicle is an open truck in his record and not converted into a Bus so far.
11. 3.That applicant has objected that the permit-holder Malik Ahmed Shah has sold the route permit to another person namely Abdul Ghaffar son of Adam Khan which is unlawful and requested for cancellation of his route permit covering Quetta-Zhob route.
4. Inthe light of the queries of the Offices and photo copies of which is enclosed, it is, therefore, requested that the route permit granted to the aforesaid bus owner namely Malik Muhammad Shah son of Gul Hassan may kindly be cancelled fothwith and action taken against the defaulter."
12. On the basis of aforesaid letter, respondent No.3 by means of memorandum No. 473-74, Misc-30 R.T.A. Dated 31st, March, 1987 cancelled the route permit of the petitioner. Operative portion of this letter is also reproduced:- "The route permit of Bus No.ZB-1951 stands cancelled as desired by the Secretary PTA, Baluchistan, Quetta vide its No.48-Sta/ PTA/73 dated 23-9-1986 conveyed to you through this office memo No.59-62-Misc-30/RTA dated 20-1-1987.
13. 3.The case is quite clear now. Bus No.ZB-1951 does not have any timetable at all being without route permit and as such the timetable issued vide this Office Order No. 1758-75/TT-8/RTA dated 25-5- 1981 also stands cancelled only as far as ZB 1951 owned by Ahmed' Shah son of Malik Gul Hassan (fixed at 4-00 p.m. Both from Quetta and Zhob is concerned), stands cancelled. It is worth noting that timetable ceases to exist immediately after cancellation of the route permit on the Authority of which the timetable is issued.
14. 4.No replacement in respect of ZB(T)3334 has been approved. ZB(T)3334 which is a Mazda bus cannot repeat cannot be allowed to ply on the timings of Bus No.ZB-1951 the route permit of which has already been cancelled by Provincial Transport Authority, Baluchistan which stands already conveyed to you."
15. 3.Feeling aggrieved petitioner preferred an appeal before Board of Revenue Baluchistan.
16. Simultaneously petitioner also filed a constitutional petition No.46/87, which however was disposed of on 21-4-1987 in the following terms:- "By consent of the learned counsel for the parties, we direct the respondent .No.2 to dispose of the appeal filed by the petitioner against the order of respondent No.3, which has not so far been disposed of. The appeal should be disposed of within two weeks. The petition is disposed of in the above terms with no order as to costs."
17. In the circumstances appeal filed by petitioner before the Board of Revenue Baluchistan came up for hearing on 7-5-1987, and was dismissed being 'incompetent. Relevant observations of 'Board' are reproduced below:- "3. The petitioner has therefore, come in appeal under rule 96-A of the Motor Vehicles Rules, 1969.
18. The case was, therefore, heard by all the three M.B.Rs of the Board. Mr. Inayatullah Khan, Advocate has been heard on behalf of the appellant. Mr. Muhammad Mur, Superintendent PTA was present on behalf of PTA, while the RTA Quetta was represented by Mr. Abdul Hayee. The respondent was represented by Mr. Khushnood, Advocate. Office files of the PTA and RTA have been perused. The short point for the disposal of this case is, if the communication of Secretary PTA dated 23rd September, 1986 is an order of the PTA or it is an executive direction to RTA. The learned counsel for the appellant has not been able to show us from the body of the communication itself or through its interpretation that the matter ever was considered by the PTA. At the most it was an administrative instruction conveyed to the RTA by the Secretary PTA. As such without going to the other merits of the matter we are of the considered opinion that as this is not an order of the PTA and in terms of Rule 96-A, only the order of the PTA can be made the subject of appeal before the Board as a whole. We therefore, dismiss the appeal. The appellant is however, advised to pursue other legal remedies if available under the law of the land."
19. It may be seen that, 'Board' has declined to exercise appellate authority merely on a technical ground, by holding that action of Secretary P.T.A. Was in the nature of administrative instruction. It is surprising that though factually route permit of petitioner stood cancelled yetthe 'Board' of Revenue did not entertain the appeal. Thus, evidently no other alternate remedy is available to petitioner. Therefore,constitutional petition challenging the proceedings and orders passed by respondents 2 to 4 in the given circumstances obviously is maintainable.
20. 5.Mr. Inayatullah Kansi, learned counsel for petitioner urged that;
(i) Secretary P.T.A. Has no authority under the law to pass any order or make recommendation for cancellation of permit therefore, memorandum dated 23-9-1986 issued by him to respondent No. 3 was totally without jurisdiction.
21. (ii)Respondent No. 3 (R.T.A.) vide memo No. 473/74 dated 31-3-1987 has- cancelled petitioner's route permit without applying his own mind, by merely acting at the dictation of Secretary P.T.A. As such his order has no legal sanction.,
(iii) Aforementioned two orders, as well as, alleged inquiries forming basis for said action is recorded and conducted behind the back of petitioner, thereby principles of natural justice have been violated.
22. 6.Whereas on the other hand Mr. Khushnood Ahmed, learned counsel for respondent No.1 vehemently raised following contentions.
23. (i)Petitioner has sold his vehicle No.ZB(T)1951 which is now plying on Musa Khail-Dera Ghazi Khan route.
(ii) Petitioner has no locus standi because he has already sold route permit No.10 of 1980 to Abdul Ghaffar.
(iii) Vehicle No.ZB(T)3334 sought to be replaced by petitioner, does not belong to him.
(iv) When hearing is allowed at appellate stage that event grievance about negation of natural justice cannot be legitimately voiced.
24. (v)All important factors have been suppressed by petitioner, who thus has not approached the Court with 'clean hands' as such petition s not maintainable.
25. 7.Similarly learned Advocate-General in addition to arguments addressed by learned counsel for respondent No.l attempted to justify the imRugned orders. However he was not able to substantiate from record that, petitioner was given any notice by the respective forums before impugned orders were passed.
26. 8.We have perused available record and considered, the arguments advanced by learned counsel for parties.
27. Petitioner mainly claims that Bus No.ZB-1951 plied on Quetta-Zhob route is unserviceable, therefore, he is entitled to replace vehicle No.ZB-3334. Undisputedly an application was submitted by him to respondent No.3 on 12-2-1986 seeking proposed replacement of the vehicle. However, before sanction for replacement of vehicle could be accorded, the respondent No.l by means of application dated 8-9-1986 challenged petitioner's locus standi and bona fides for said purpose. It is pertinent to mention here that provisions concerning grant of route permit, duration and conditions, for holding the permit, or its cancellation, transfer, suspension, renewal, fixation of timing and replacement, etc. Are regulated by sections 50 and 59 to 62 of the West Pakistan Motor Vehicles Ordinance, 1965, as well as rules 79 to 92 of 'Motor Vehicles Rules, 1969'. It may be seen that proviso to section 62 of the Motor Vehicles Ordinance 1965 clearly specifies requirement of hearing before action for cancellation of route permit is taken.
28. 9.In the instant case, primary question which arises for consideration is whether any notice was given to petitioner about proposed action for cancellation of his route permit or any opportunity of hearing was allowed to him before impugned orders were passed. There is absolutely nothing on record to show that petitioner had any intimation about proceedings initiated by respondents 2 and 3 regarding cancellation of his route permit, Moreover bare perusal of impugned orders indicates that same have been passed merely on the 1 basis of certain departmental enquiries without obtaining any explanation of petitioner. Thus, said orders apart from being repugnant to statutory requirement are also clearly violative of well recognized principle of audi alterm parten.
29. Consequently impugned orders negating principle of natural justice are void as much as an order which is coram non judice as such the orders do not exist in the eyes of law.
30. Similarly, contention of the respondent that hearing was allowed at the appellate stage is not tenable at all, because even 'Board' of Revenue' unjustifiably dismissed the appeal, by declining to exercise jurisdiction merely on technicalities. Evidently necessary conditions prescribed by law for dealing with cancellation of route permit have not been fulfilled. Undoubtedly neglect to comply with mandatory requirements of an enactment prescribing the procedure how something is to be carried out renders the action to be invalid. Accordingly whole edifice built on the basis of void proceedings falls to the ground. If any authority is needed reference may be made to the observations in following reported judgments:- (i)Farid Sons Ltd. Karachi v. Government of Pakistan and another PLD 1961 SC 537.
31. (ii)Mushtaq Ahmad Mir v. Azad Government of State of J & K and others PLD 1985 A J K 212.
32. (iii)Pir Shah Mardan Shah v. Chief Land Commissioner, Sind and others PLD 1974 Kar. 375.
33. (iv)Atta Muhammad Qureshi v. The Settlement Commissioner Lahore Division PLD 1971 SC 61.
34. Secondly record of this case amply discloses, that respondent No.3 has not applied its own mind while passing order dated 31-3-1987. It has merely complied with alleged directions contained in letter No.48/STG/PTA-73 dated 23-9-1986 of Secretary P.T.A. Factually cancellation of route permit could be ordered only by the authority who granted the same subject however 'to the procedure prescribed by law and rules. Therefore undisputedly Secretary Provincial Transport Authority has absolutely no jurisdiction to issue any direction specially behind the back of petitioner.
35. Communication No. 48 (STG) PTA-73 dated 23-9-1986 accordingly has absolutely no legal sanction. Now it may be seen that respondent No.3 instead of exercising his authority and discretion, has completely surrendered himself to the directions of an outside agency which has no recognition under their law. Even otherwise any decision at the dictation of higher authority or any outside agency cannot be appreciated. Superior Courts have consistently held that such orders are to be deemed invalid and without lawful authority. In this view we are supported by thel observations in following reported cases:- (1)Raja Muhammad lqbal v. Chief Settlement Commissioner PLD 1975 Lah. 1508.
36. (ii)Syed Hussain Quadri v. Administrator Lahore Municipality PLD 1972 Lah. 316 and 334.
37. (iii)S.B. Industries v. Deputy Registrar Trade Mark PLD 1969 Dacca 451.
38. (iv)Ghulam Mohyuddin v. Chief Settlement Commissioner P L .D 1964 Supreme Court 829.
39. (v)Muhammad Anwar v. Ghulam Ahmed 1979 P Cr. L J Note 62 at p. 41.
40. (vi)Pakistan Mine Owners v. District Magistrate Quetta PLD 1979 Quetta 160 at 166.
41. Thus, on both the counts orders passed by Secretary P.T.A. And R . T . A . Have no legal sanction.
42. However objection about locus standi and entitlement of petitioner to claim replacement of vehicle obviously needs inquiry which could be determined by competent authority after affording reasonable opportunity of hearing, therefore, it is premature to dilate upon all these aspects without obtaining explanation of the petitioner. Similarly assertions concerning suppression of facts etc. Also have no relevancy at this stage.
43. For the foregoing reasons we are inclined to partly accept the petition. The order dated 23-9-1986 passed by Secretary P.T.A. As well as order dated 31-3-1987 passed by R . T . A . Are set aside.
44. Consequently petitioner's application dated 12-2-1986 seeking replacement of proposed vehicle bearing No.ZB 3334 be deemed pending before Regional Transport Authority (Respondent No.3).
45. Similarly objections raised. By respondent No.l by submitting application dated 8-9-1986 as well as 19-3-1987 before Secretary P.T.A. Regarding cancellation of petitioners route permit be transferred to Regional Transport Authority (Respondent No.3) and would be deemed pending before it.
46. Accordingly respondent No.3 is directed to dispose of the request of petitioner for replacement of proposed vehicle or renewal of the permit, as well as objections of respondent No.l regarding cancellation of petitioner's route permit, on its own merits according to law, after providing opportunity of hearing to both the sides.
47. It is further observed that pending determination of aforesaid dispute by the Regional Transport Authority, the petitioner shall not ply new vehicle on Quetta-Zhob route.
48. This petition was decided by our short order dated 14-6-1987, here are reasons for the same.
49. Parties are left to bear their own costs.