' ABDUL QADEER CHAUDHARY, Actg. C.J.--This petition has arisen out of the following facts.
1. The petitioner, on 12-3-1985 applied to the Regional Transport Authority (Respondent No.2) for stage carriage permits for two mini buses (13 seater each) on Muslimbagh-Quetta route and back.
The respondent No.2, wrote to Political Agent Zhob asking for his views/ recommendations. The Political Agent by his letter dated 25-4-1985 recommended the grant of route permit applied by the petitioner. Respondent No.2 wrote to the petitioner that his application is kept pending for want of necessary documents. The private respondent moved an application to the Commissioner Quetta Division, Quetta on 12-1-1986, that in order to adversely effect his business the petitioner is making attempt to ply mini buses on this route. It is further stated that there is blood fued between the parties, therefore, the petitioner should not be granted the permits. There is another application of ten transporters including the present private respondent dated 2-1-1986 that some new transporters have started plying mini buses without any licence which is adversely affecting their business.
2. The second respondent once again wrote a letter dated 29-1-1986, to the successor-Political Agent for furnishing his views to the effect that if permits for mini buses are issued to the petitioner, the smooth running of existing transport will not be affected. The Political Agent by letter dated 15- 3-1986 addressed to the Secretary R.T.A. Stated that there is already too many mini buses plying on route, grant of new permit may create law and order problem. However, if the applicant agrees to start from Quetta in the morning and return from Muslimbagh in the evening then he has no objection. Grant of permit from Muslimbagh to Quetta for morning is not recommended. The application of the petitioner was rejected by the respondent No.2 on 12-5-1986 on the ground that Political Agent has not recommended and there was tribal dispute between the petitioner and the transporters. According to the petitioner on 28-5-1986 the petitioner was informed that some decision had been taken on 12-5-1986.
3. Being aggrieved from the order dated 12-5-1986, the petitioner filed appeal before the respondent No.1 under Rule 96 of the West Pakistan Motor Vehicles Rules, 1969. By order dated 1-12- 1986, the respondent No.1 rejected the appeal on the ground that it was barred by time. It has been further observed that no principle of natural justice has been violated as the petitioner has not made any application for hearing so the R.T.A. Was not obliged to hear him. It has been recorded that the R.T.A. Considered all aspects of the matter before rejecting the application for grant of route permit.
4. The learned counsel for the petitioner has seriously assailed the finding of the respondent No.1 that the appeal was barred by time. Under Rule 97 any person desiring to prefer an appeal against the order of Regional Transport Authority, shall within 30 days of the receipt of the order prefer an appeal. The order of R.T.A. Does not show that the petitioner was present when the order dated 12- 5-1986 was passed. The record also does not indicate that this order was communicated to the petitioner. According to the petitioner he himself obtained the copy of the order on 28-5-1986 and thereafter filed the appeal on 24-6-1986. The contention of the petitioner has not been controverted by any document. Even in the grounds furnished by the official respondents nowhere it is stated that the order was communicated to the petitioner. The bare perusal of Rule 97 shows that the time would run from the date of receipt of the order, but as the order has not been communicated to the petitioner, therefore, the time would not run against him from the date of passing of the order. Copy of the order was sent to the petitioner on 27-5-1986 as such the appeal was within time.
5. As regards the merits of the case, it is contended by the petitioner that under prevailing procedure for grant of route permits an applicant is allowed to purchase vehicles, therefore, the petitioner purchased two mini buses. In such circumstances it was necessary for the respondent No.2 to give personal hearing to the petitioner as no such opportunity was afforded to him, thus there is violation of principle of natural justice. It is contended that though there is no specific provision for personal hearing but it is an accepted principle of law that no adverse can be made without affording an opportunity of being heard. The contention as stated by the learned counsel has no force. The petitioner has to show that he has a vested right to get a permit. In case there is no vested right for the grant of a permit then a 'person cannot make a grievance that before refusing to grant a route permit an applicant must be heard. The contention of the learned counsel can be examined in the light of the provisions of the Ordinance. Under section 59 an application for a permit of any kind may be made at any time. Under section 47 every application for a permit shall be made to the Regional Transport Authority. Under section 48 an application for permit to use a motor vehicle as a stage carriage shall contain the following particulars, namely:-
(a) the name and address of the applicant;
(b) the registration number, type, model and seating capacity of the vehicle in respect of which the application is made;
(c) the route or routes on which or the area within which it is intended to use the vehicle; and
(d) such other matters as may be prescribed.
' An application for a permit shall he accompanied by an affidavit of the applicant to the effect that he is the actual owner of the motor vehicle in respect of which the application is made. The procedure for grant of permit has been laid down in section 49, which reads as follows:- "Where an application for stage carriage permit conforming to the provisions of section 48 has been received by the Regional Transport Authority it shall, on the payment of the prescribed fee, and on the applicant furnishing to the Regional Transport Authority, a bank guarantee of the prescribed sum as security for payment of any compensation that the applicant may be required to pay under the provisions of section 67, grant a permit to applicant in the prescribed form in respect of the motor vehicle specified in the application."
' Under rule 57 the Provincial or Regional Transport Authority may summon any applicant for a permit to appear before it and may decline to grant a permit until the applicant has so appeared either in person or by an agent.
6. The aforesaid provisions would make it clear that the respondent No.2 was not bound to grant a permit to every applicant. The contention of the petitioner that he had purchased two mini buses on the direction of the respondent No.2 is not correct. Nothing has been produced to substantiate this contention. The application was not invited by the respondent No.2 for grant of permit. The petitioner on his own had purchased the mini buses because it is a condition precedent for making an application for grant of permit to be the owner of a vehicle or vehicles as the case may be. An application for a permit cannot be made unless it is shown that the applicant is the actual owner of a motor vehicle in respect of which the application is made. Mere purchase of vehicle by a person does not entitle him to the grant of a permit. Such application can only be considered by the appropriate authority on its own merits. The grant cf permit is not a mechanical process on the filing of application. The petitioner has not absolute right to get a permit and it is with the discretion of the respondent No.2 to grant or refuse a permit keeping in view the facts and surrounding circumstances of a particular case. Though while exercising such discretion the R.T.A. Is under legal obligation to deal with the applications before it fairly, justly and equitably as held in Ikram Bus Service and others v. Board of Revenue, West Pakistan and two others PLD 1963 S.C.
564. The petitioner had not moved the application for, grant of route permit on the demand of the official respondents. In such circumstances the question of personal hearing does not arise, and if the petitioner wanted that he should be heard he should have specifically stated in his application that before making a final order an opportunity should be given to him. In the case of The Tariq Transport Company, Lahore v. The Sargodha Bhera Bus Service, Sargodha and others PLD 1958 S.C.
437, the relevant observation for our purpose reads as under:- "The Act does not say that the applicant and the objector must be heard in the presence of each other; all that it says is that they both must be heard if they wish to be heard. The hearing of the objector in the absence of the applicant or subsequently to the date on which the applicant is heard or his application considered does not in all cases amount to a denial of fair hearing so as to make the proceedings void or illegal.
' The High Court had acted on the assumption that the provisions of S.57 being mandatory any departure from them, however, immaterial in the circumstances of a case, was sufficient to vitiate the entire proceedings.
' That this was not the law because the violation of a procedural rule regulating the hearing, if it results in an error so minor as not to amount to the denial of a fair hearing, cannot be a ground for quashing the proceedings, if in fact, by the irregularity no prejudice has been caused to the petitioner for a writ."
In the case of an administrative tribunal, however, the emphasis is on policy, expediency and discretion to enable it to achieve the object with which it was set up. In the case of such a tribunal the approach in determining the relevant facts is therefore often subjective and not objective, there being generally no lis before it in which the parties are arrayed against each other for the enforcement of a private right or liability and who for that purpose are entitled to produce evidence and adduce legal argument.
' In the absence of any allegation of excess or absence of jurisdiction the High Court had no power to issue an order of certiorari or mandamus or any order or direction to the Regional Transport Authority in respect of its decision to grant or refuse to grant a route permit under the provisions of Ss.47(1) and 57 of the Motor Vehicles Act.
' The Authority in such cases acts in an administrative capacity and not judicially. There is no his before the Authority. Applicants have no legal right to the grant of a permit, which depends upon matters of policy in the light of considerations mentioned in S.47.
' Here it may be pointed out that here is no provision in the Ordinance similar to section 57 of Motor Vehicles Ordinance, 1939. We are, therefore,of the view that the circumstances of the present case do not show that there is violation of any principle of natural justice. Additionally it may be pointed out that the petitioner was heard by respondent No.1 and his appeal was dismissed on merits.
7. The learned counsel then submitted that if all the conditions have been complied with and all necessary documents have been filed the R.T.A. Is bound under section 49 of the Ordinance to grant route permit. This contention is misconceived. Section 49 does not provide that in each and every case when the conditions are fulfilled the route permit must be granted to an applicant.
Under section 47 of the Motor Vehicles Act, 1939 the R.T.A. Had to consider certain facts in deciding to grant or refuse a stage carriage permit. Such facts require the interest of public generally; the advantages to the public of the service to be provided; 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 proposed; the benefit to any particular locality; the operation by the applicant cf other transport services; and the condition of the roads. But this provision is omitted from the Ordinance. However, the official respondent in granting or refusing a permit has to consider the interest of public generally. The R.T.A. Has to apply its own independent mind to facts and circumstances of each case and in reaching such conclusion the interest, convenience and benefit of the public must be looked into.
8. The learned counsel for the petitioner has submitted that even in discretionary matters the discretion should not be exercised in arbitrary manner. There is no dispute with this proposition because the authority while exercising its discretion must not act capriciously or in arbitrary manner. It must use its discretion; in fair, impartial and judicious manner. It is, therefore, to be seen whether the order of the respondent No.2 offends any such principle so as to attract the powers of this Court under Article 199 of the Constitution. The application has been rejected by the R.T.A. On the ground that the Political Agent Zhob had not recommended for such permit and there was tribal dispute between the petitioner and the transporters, who are running the buses on this route.
The Political Agent in his report has stated that there is already too many buses and mini buses plying on this route, grant of any new permit may create law and order problem, however, if the applicant agrees to start from Quetta in the morning and return from Muslimbagh to Quetta in the evening then he has no objection. The learned counsel for the petitioner has raised two-fold contentions; first, that there was already recommendation from the Political Agent and there was no necessity for sending the application to the successor Political Agent; second, there is no provision in the Ordinance to refer the application to the Political Agent for his recommendation.
These contentions are devoid of force; the R.T.A. Has to decide an application for grant of route permit on merits of the case. The law and order situation and the other attending circumstances of the case may be considered before granting application. For this purpose application was forwarded to the Political Agent for his views. The second contention is self destructive because if the applicant is basing his claim on the recommendation of the Political Agent to whom his application was forwarded then he has no right to challenge the action of respondent No.2 in obtaining the views of the successor Political Agent. The learned counsel has referred to Law of Writs 3rd Edition by Dr. R.G. Chaturvedi Page 455 in support of his contention that where the authority fails to exercise discretion at all and declines its jurisdiction, it can be compelled to exercise discretion, thus mandamus can be issued. Reliance has been placed at page 454 of the book:- "The law has been beautifully summed up in Corpus Juris in the following words:- 'Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is a peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial, unless it clearly appears that there has been an abuse of discretion on the part of such Court, bear, tribunal or officer and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, even though its conclusion be disputable, or, however, erroneous the conclusion reached may be and although there may be no other method of review of correction provided by law. The discretion must be exercised according to the established rules of law, and it may be said to be abused within the foregoing rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties when so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective."
' He has also referred to Judicial Review of Administrative Action by S.A. De Smith 3rd Edition page
251. In which it has been observed that an authority may have a discretion whether to exercise a power, and a discretion in the manner of exercising it. But discretionary powers are frequently coupled with duties. There is no cavil with the principle that mandamus can be issued to secure performance or a public or a statutory duty but it is always a question of fact whether any interference by mandamus is called for on a set of circumstances of a particular case.
9. It is next contended that even the successor Political Agent has recommended for the grant of permit with the change of starting point, from Quetta instead of Muslimbagh, therefore, the respondent No.2 should have granted the permit. It is further contended that the schedule of timing is subsequent to the grant of permit. If the permit had been granted then the timing could be fixed.
When we pointed out to the learned counsel whether he is willing to ply his mini buses on the timing suggested by the Political Agent he submitted that it would be uneconomical. This statement would also show that the order of the respondent No.2 is not arbitrary.
10. The learned counsel has also challenged the contention of the official respondents that there is some tribal rivalry between the petitioner and the unofficial respOndent. He stated that it is for the administration to make necessary steps for avoiding any breach of peace. No doubt it is the duty of the authorities to maintain peace and tranquillity but in view of clear assertions that there was blood feud between the parties, the official/respondent No.2 took into consideration this fact also while refusing the application. It has been specifically stated by the official respondents that there is already enmity between the tribes of the petitioner and the private respondent. There are number of cases pending in the Courts of law between the parties and the parties have been bound down with peace security. Some documents are also filed (Annexures-R-3/1 to R-3/6). Thus, there is factual controversy about certain facts which cannot he resolved in this petition. The official respondents in their parawise comments have stated that the petitioner did not deserve grant of route permit because of law and order problem, Reports of the authorities concerned were considered in R.T.A. Meeting. As a disputed question has been raised, therefore, we would not enter into the realm of facts.
11. It is contended by the private respondent that the petitioner has been plying his vehicle without permission from the Regional Transport Authority against which complaints were lodged and action was initiated. In support of such contention two order of R.T.A. (Annexures R-3/7 to R-3/8); have been filed whereby the Deputy Superintendent of Police was requested to impound the mini buses of the petitioner, which were plying without route permits. The respondents have also referred to a certificate issued in favour of the petitioner whereby he was allowed to bring mini bus No.QAC 9321 for repair purpose. It is, therefore, contended that as the petitioner was plying the buses without any permit, therefore, his conduct debars him from equitable relief. The learned counsel for the petitioner in reply to such contention raised some facts which again require inquiry and investigation.
12. The learned counsel for the respondents have referred to Muhammad Hussain Munir v. Sikandar and others PLD 1974 SC 139, wherein it has been observed that where a Court or a tribunal has jurisdiction .And it- determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law. Reliance has also been placed on the case of Abdul Farukh v. Presiding Officer, Junior Labour Court No. IV, Karachi and 2 others PLD 1978 Karachi 867 and Syed Hadi Ali v. The Government of West Pakistan, and others PLD 1956 Lah. 824 in support of such contentions.
13. The official respondents have decided the matter keeping in view the facts and circumstances of the case, which lay within exclusive H domain of their authority as such we do not see any ground for grant of relief. ' The upshot of the above discussion is that the petition is dismissed with no order as to cost.