SAEEDUZZAMAN SIDDIQUI, J.--This petition under Article 199 of the Constitution is filed by the petitioner who is a transporter to challenge the order of respondent No. 1 dated 24th November, 1987, whereby he changed the departure time of stage carriage No. 951-881, owned by the petitioner, from Kunri. The learned counsel for the petitioner has raised two fold contentions in support of the petition. It is, firstly, contended that the order dated 24th November, 1987 changing the time schedule of the stage carriage mentioned above was passed without issuing any notice to the petitioner or hearing him; and secondly the Secretary, Regional Transport Authority (R.T.A.) has no authority under the law to change the time schedule of stage carriages. The learned counsel for respondents, 1 and 4 on the other hand supported the order of respondent No. 1 dated 24-11-1987 and took the plea that time schedule of stage carriage being the part of route permit granted to transporter, the respondent No. 1 as delegate of R.TA. Was fully competent to revise or change the time schedule of the stage carriage. With regard to plea of petitioner that he was not given any notice or heard before passing of the above order the learned counsel for respondents 1 and 4 relied on the comments submitted by respondent No 1 in the case and submitted that according to comments of respondent No. 1 the petitioner's view point was fully considered before passing of the impugned order. In order to appreciate the contentions of the learned counsel for the petitioner it is necessary to state here the following admitted facts.
On 14-9-1987 fresh stage carriage permits in respect of buses No. 936--385 and 951-881 on route Hyderabad-Kunri were issued to the petitioner. As a result of issuance of above permits, on 14th October, 1987, the time schedule of these buses on the above route was provisionally adjusted. The petitioner has alleged that this order was passed by R.T.A. But it was communicated by respondent No. 1. It appears that some of transport operators objected to the above provisional timing fixed on 14-10-1987 and accordingly respondent No. 1, by his order dated 24-11-1987 changed the departure time of one of these carriages, being No. 951-881 owned by the petitioner, from Kunri. It may be mentioned here that before the order dated 24-11-1987 could be passed by respondent No. 1, the petitioner instituted a civil suit in the court of IVth Senior Civil Judge Hyderabad (F.C. Suit No. 544/87) on 27-10-1987 for declaration and permanent injunction against the respondents and obtained status quo order. The plaint in the above suit was, however, rejected by the Civil Judge on 23-11-1987 with the result that the status quo order granted m favour of petitioner was also vacated on 23-11-1987 and on the following day namely, 24-11-1987 the impugned order was passed by respondent No. 1. It is significant that petitioner in the above suit in paras 3 and 10 of the plaint had made the following allegations:- "3. That defendant No. 1 is an authority under law to frame time schedule of the buses plying on the routes within region of defendant No. 1. The defendant No. 1 while making time schedule of the buses has to consult with the transporters so that the interest of each and every transporter is safeguarded." xxxxxxxxx x "10.That the defendant No. 1 had not given any notice to the plaintiff of application/representation of defendants Nos. 3 and 4 and intends to pass adverse orders against the plaintiff by changing time schedule of the buses of plaintiff on his back for which he has no jurisdiction."
The respondent No. 1 who was defendant No. 1 in the above suit made the following reply in his written statement to paras 3 and 10 of the plaint:- "3. Not denied. The defendant No. 1 is empowered to regulate the timings of arrivals or departures of stage carriages (buses) under Section 50(2) (b) of the Motor Vehicles Ordinance, 1965 (Ordinance XIX of 1965). There is no binding on defendant No. 1 in law to consult individual owner/owners or allow timings at the sweet will of owner is-but it is by practice to frame the time schedule with consultation through some prominent operators well conversant with time schedules or representative of their Association i.e. Sind Bus Owner.-Association, so as to give due considerations to their suggestions/proposals, if any in this regards, in order to avoid objections thereon". xxxxxxxxx x "10. The objection filed by the defendants Nos. 3, 4 and others over the timings allowed to these two buses were under finalization and no order has been passed in this regard. The defendant No. 1 has lawful right to revise the timings of above two buses."
It is quite clear from the above reply of respondent No. 1 in the suit that the allegation of petitioner that he was not given any notice was not denied and on the contrary respondent No. 1 took the position that he was not bound to consult the individual transporter for change of time schedule.
This written statement was filed on behalf of respondent No. 1 in the suit on 10-11-1987 when the status quo order granted by the Civil Court was enforced. The above suit was dismissed by the Civil Judge on 23-11-1987 under Order VII, Rule 11 CPC as it was found to be barred under Section 66(3)
(a) (b) of Motor Vehicles Ordinance, 1965 and consequently the status quo order was also vacated on 23-11-1987. The following day, namely, 24th November, 1987, the impugned order was passed by respondent No. 1 which reads as follows:- "Office of the Secretary, Regional Transport Authority, Hyderabad.
No. RTA/2252 of 1987.
Hyderabad Dt. 24th Nov. 87.
The objections filed by the 8 (Eight) operators over time schedule issued under this office order No.RTA/1986/87 dt: 14-10-1987 were considered. Their view points were also examined at length.
Accordingly the following adjustments are allowed on provisional basis till entire schedule is revised: - S No.Bus No.UmerkotKunriSomaro
1. 951-975 11.28
2. 951-749 11.40
3. 951-590 14.2015.11
4. 969-547 14.4015.31
5. 952-309 15.00.15.41
6. 952-963 15.2016.01
7. 951-881 15.4016.21
8. 950-730 19.0019.30 S No.Bus No.Hyd.M Khas.
1. 950-730 6.24
2. 951-881 9.48
3. 969-402 10.00
4. 956-325 11.48
5. 953-760 12.00
6. 969-387 20.15
7. 951-749 20.30
8. 951-975 20.45
9. 950-139 21.15 10.800-122 21.30 (Muhammad Bachal Bohio), Secretary, Regional Transport Authority, Hyd."
The impugned order reproduced above does not show that the petitioner was issued any notice or was heard before passing the same. It only referred to objections of 8 Operators filed against the time schedule of petitioner's buses. In this background, the statement made by respondent No. 1 in the comment "that the objections including the petitioner's were heard and their view points/proposals were considered/examined at length" could not be accepted. The petitioner in his petition on oath stated that he was neither issued any notice nor heard before passing of the above order. No counter affidavit has been filed by respondent No. 1. To deny these allegations.
These allegations of petitioner otherwise, appear to be correct as status quo order was vacated by the Civil Court on 23-11-1987 and on the next date the impugned order was passed. There was thus hardly any possibility for respondent No. 1 to have issued notice to petitioner or heard him in the case. The next contention of the learned counsel for the petitioner in the case is that the power to regulate timing could not be exercised by the respondent No. 1 under the law as this power according to learned counsel for the petitioner, could either be exercised by the Provincial Transport Authority (R.T.A.) or the Regional Transport Authority (R.T.A.). The power to issue permit or stage carriage is contained in Section 49 of the Surd Motor Vehicles ordinance 1965 (we will hereinafter refer to it as `the Ordinance' only for the sake of convenience). Section 50 of the Ordinance conferred powers on P.T.A. Or 12.T.A. To restrict the number of stage carriage and impose conditions on stage carriage permit. Clause (b) of sub-section (2) of Section 50 ibid conferred power on the P.T.A. And R.T.A. To regulate timings of arrival or departure of stage carriages, whether they belonged to one or more owners. The contention of the learned counsel for the petitioner is that power conferred under clause (b) of sub--section (2) of Section 50 is exclusively exercisable either by P.T.A. Or R.TA. According to learned counsel for the petitioner, respondent No. 1 who is Secretary of R.T.A. Had no authority to exercise these powers. The constitutions of P.T.A. And R.T.A.
Are provided in Section 46 of the Ordinance which is as follows: - "46. Transport authorities.--(l) Government shall by notification in the official Gazette, constitute-
(i) A Provincial Transport Authority to exercise and discharge throughout the Province the powers and functions specified in sub-section (6), and
(ii) Regional Transport Authorities to exercise and discharge throughout such areas (in this Chapter referred to as regions) as may be specified in the notification, in respect of each Regional Transport Authority, the powers and functions conferred by or under this Chapter on such authorities.: Provided that the area specified as, the region of a Regional Transport Authority shall in no case be less than an entire District.
(2) The Provincial Transport Authority or a. Regional Transport shall consist .Of such number of Government officers as Government. May think fit to appoint, but no person who has any financial interest whether as proprietor, employee or otherwise in any transport undertaking, shall be appointed or continue as ,a member of the Provincial or a Regional Transport Authority.
Explanation.--A person shall not be deemed to have any financial interest in a transport undertaking for the purposes of this section merely by reason of the fact that he is a member or an employee of the Railway Board or is a person in the service of Pakistan or serving under the Corporation.
(3) If any person who is appointed as a member of the Provincial or a Regional Transport Authority has any such interest in transport undertaking as is referred to in sub-section (2), he shall forthwith give notice of the same in writing to Government.
(4) If any member of the Provincial or a Regional Transport Authority during his term of office acquires any such interest in a transport undertaking as is referred to in sub-section (2), he shall within four weeks of acquiring such interest give notice of the same in writing to government, and shall on the giving of such notice cease to be such member. .
(5) If any person becomes a member or continues to remain as a member of the Provincial or a.
Regional Transport Authority in contravention of the provisions of this section he shall be deemed to have committed an offence against this Ordinance.
(6) The Provincial Transport Authority shall exercise and discharge the following powers and functions, namely:-
(i) to co-ordinate and regulate the activities and policies of the Regional Transport Authorities;
(ii) to perform the duties of a Regional Transport authority--
(a) where there is no such authority; or
(b) where there is such authority, if it thinks fit 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 Authorities; and
(iv) to discharge such other functions as may be prescribed.
(7) The Provincial Transport Authority may, subject to such conditions as may be prescribed, issue to a Regional Transport Authority such order and directions of general character in respect of road transport as it may deem necessary, and the Regional Transport Authority shall give effect to all such orders, and directions.
(8) The Provincial Transport Authority and any Regional Transport Authority, if authorised 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, limitations and conditions as may be prescribed by the said rules".
It is quite clear from the reading of the above section that P.T.A. And R.T.A.Shall consist of such number of Government officers as the Government may think fit to appoint but no person who has financial interest whether as a proprietor, employee or otherwise in any transport undertaking shall be appointed or continue as a member of the. P.T.A. Or R.T.A. It is, therefore quite clear that P.T.A. Or R.TA. Is a collective body of members. Appointed under section 46(2 of the Ordinance and not any particular official of these authorities. This position is further clarified by rule 53(3) of Sind Motor Vehicle Rules 1969 (to be called as `the Rules' for the sake of brevity), which provides that two members of the authority shall constitute quorum provided that the Secretary member shall not be counted for the purpose of quorum. However, the delegation of the powers by P.T.A. And R.T.A. Is provided under sub-section (8). Of the Section 46 of the Ordinance but this, again is made. Subject to such restrictions, limitations and conditions as may be prescribed by rules. The contention of the learned counsel for respondents 1 and 4 is that respondent No.1 has been delegated the powers under Section 50 of the Ordinance. Section 50 of the Ordinance as originally enacted was as follows :- "50.Power to restrict the number of stage carriages and impose conditions on stage carriage permits.-; (1) The -Provincial or a Regional Transport Authority shall--
(a) have a thorough, survey carried out, in such manner and at such times as may be prescribed by rules made by Government, of the road passenger and transport services in the Province or the region in which it exercised jurisdiction; - ,
(b) E.x the number of stage carriages: of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region.
(2) The Provincial or a 'Regional Transport Authority, as the case may be, may, after, consideration of the matters set forth in subsection (1) of Section 49
(a) refuse to grant a stage-carriage permit, or grant within the limit fixed under clause (b) of subsection (1), a stage-carriage permit in respect of particular stage carriage or a particular service of stage carriages in such form as it may, subject to the rules made under Section 69, deem fit; provided that no permit shall be granted to any person for a route other than the route specified in the application made by him under Section 48;
(b) regulate timings of arrival or departure of stage carriages, whether they belong to one or more owners:
(c) attach to a stage carriage permit any prescribed condition or all or any of the following conditions, namely :-
(i) that the service specified in the permit shall be commenced not later than a specified date and be continued for a specified period; (ii)that a specified number of return trips of daily services shall be maintained on the route or routes specified in the permit and they may be varied only in accordance with specified conditions;
(iii) that the stage carriage or stage carriages shall be used only on specified routes or in a specified area;
(iv) that copies of fare table and time table approved by the Regional Transport Authority shall be exhibited on the stage carriages and at their stands and stops on the route, and that the time table and fare table so exhibited shall be observed;
(v) that not more than a specified number of passengers and not more than a specified amount of luggage shall be carried on any stage carriage at any one time;
(vi) that within municipal limits and .In such other areas and places as may be prescribed, passengers shall not be taken up or _set down except at specified places;
(vii) that in case of a break down of a stage 'carriage or other specified emergency on a route on which less than five stage carriages are plying, the holder of a permit to ply vehicles 'on such route may, subject to specified conditions, ply on that route a vehicle not covered by a permit and obtain the requisite authorisation in this behalf from the Regional Transport Authority within a specified peri6d; .
(viii) that a reserve of specified number or percentage of vehicles covered by the permit shall be kept by the permit holder, to provide for special occasions and break-down;
(ix) that the permit holder shall maintain such accounts and records of the operation of the services and shall submit such. Financial and statistical return as may be required by the Regional .Or Provincial Transport Authority, and .That the records and accounts shall be produced for inspection before the person or persons authorised in this behalf by the Regional or Provincial Transport Authority; and.
(x) that tickets shall be issued to passengers for the fares paid.'
Similarly Rule 62 of the Rules which regulated delegation of powers by P.T.A. And R.T.A. As originally framed was as follows: -- "62._Delegation of powers to Chairman Regional Transport Authority or Secretary, Regional Transport Authority.--A Regional Transport Authority may by general or special resolution recorded in its proceedings and subject to the restrictions, limitations and conditions 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 licence to drive a transport vehicle;
(ii) (power under Section 44 and 52 to grant a contract carriage permit;
(iii) power under sections 44 and 53 to refuse a contract carriage permit, in cases where no representations are received to grant with or without modifications such an application, and attach conditions to the permit;
(iv) power under Section 54 to grant a private carrier 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 subsection (1) or section 50 or to vary the conditions thereof;
(vii) power to renew private carriers permits, public carriers permits, contract carriage permits and stage carriage permits under section 60 and to renew counter signatures of any such permits ;
(viii) power under subsection (2) of section 61 to permit the replacement of one vehicle by another;
(ix) power under section 62 to suspended. a permit ; or
(x) power under section 64 and under subsection (4) of section 65 to grant temporary permit; Provided that the Chairman, Regional Transport Authority or the 'Secretary, Regional Transport Authority concerned as the case may be shall--
(i) Keep informed the Regional Transport Authority from time to time of the action taken by him in pursuance of the delegated power; and
(ii) arrange to paste on a notice board on the premises of the office of the Regional Transport Authority a copy of every resolution of that Transport authority delegating its power to him.
(2) Notwithstanding anything contained in this rule, a Regional Transport Authority may, from time to time, issue instructions as to the manner in which the powers delegated shall be exercised by the officer concerned".
By Ordinance 19 of 1970 the Ordinance was amended and in place of original. Section 50 the following was substituted:-
50. Conditions for grant of stage carriage permits.--(I) A condition shall be inserted in every stage carriage permit that in case of death of, or injury to, a passenger in the vehicle to which the permit relates arising out of the use of the vehicle, there shall be paid by the permit holder as compensation--
(a) in case of death of a passenger, a sum of rupees eight thousand to the legal representatives of the deceased passenger; and
(b) in case of an injury to a passenger, the amount specified in the thirteenth schedule, to the injured passenger.
(2) A Regional Transport Authority may attach to a stage carriage permit any prescribed condition or any or all of the following conditions, namely
(i) that the service specified in the permit shall be commenced not later than a specified date and be continued for a specified period;
(ii) that a specified number of return trips of daily service shall be maintained on the route or routes specified m the permit and that they may be varied only in accordance with the specified conditions ;
(iii) that the stage carriage shall be used only on specified routes or in specified areas;
(iv) that copies of the fare-table and time table approved by the Regional Transport Authority shall be exhibited on the stage carriage and at its stands and stops on the route, and that the time- table and fare-table so exhibited shall be observed;
(v) that not more than a specified number of passengers and not more than a specified amount of luggage shall be carried on any stage carriage at any one time;
(vi) that within municipal limits and in such other areas. And places as may be prescribed, passengers shall not be taken up or set down except at specified places;
(vii) that the permit holder shall maintain such accounts and records of the operation of the services and shall submit such financial and statistical returns as may be required by the Regional or Provincial Transport Authority, and that the records and' accounts shall be .Produced for inspection before the person or persons authorised in this behalf by the Regional or Provincial Transport Authority; and
(viii) that tickets shall be issued to passengers for the fares paid.
(3) The Provincial Transport Authority or a Regional Transport Authority may regulate the timings of departure of stage carriages, whether they belong to one or more owners".
It will be seen that under original section 50 the power to regulate timings of stage carriages was contained m clause (b) of sub section (2)_ of Section 50 of the Ordinance while in the substituted section 50 this power is now contained in subsection (3) of Section 50 ibid. After substitution of above Section 50 in the Ordinance, Rule 62 of the Rules was also amended and in place of original Rule 62 (vi) the following was substituted: - "(vi) power to attach to a stage carriage permit conditions under sub-sections (2) of Section 50."
A reading of rule 62 makes it absolutely clear that R.T.A. May by general or special resolution recorded in its proceedings and subject to the limitations. And conditions contained in this rule may delegate to the Chairman R.T.A. Or Secretary R.T.A. All or any of the powers which are mentioned in sub-clauses (i) to (x) of Rule 62. We have already reproduced above sub-rule (vi) of rule 62 which provided for delegation of powers only in respect of subsection (2) of Section 50. We have also reproduced above the substituted Section 50 which shows that powers to regulate timings of stage carriages is contained in sub-section (3) in respect whereof no delegation of powers could be made to respondent No. 1 by R.TA. We are, therefore, quite clear in our mind that the respondent No. 1 could only be delegated powers under the law to attach to a stage permit carriage conditions mentioned under Section 50(2) of the Ordinance. The power to regulate timings which is contained in Section 50(3) was neither delegated nor it could be delegated to respondent No. 1 by respondent No..
4. The order dated 24th of November, 1987, passed by respondent No. 1 was therefore, wholly without jurisdiction. Mr. Riaz Ahmed the learned counsel for respondents 1 and 4 made an attempt to argue that under clause (x) of Rule 62 power to grant stage carriage permit has been given to the R.T.A. Which could be delegated under rule 62 to the Secretary and as regulation of the timings is one of the conditions of such permits, therefore, respondent No. 1 could exercise the powers in that regard. We are unable to accept this contention.
We have already pointed out earlier that power .To issue stage carriage permit is contained in Section 49 of the Ordinance, while power to regulate timings finds place in sub--section (3) of Section 50 of the Ordinance. There being specific and separate provisions in the Ordinance dealing with the issuance of stage carriage permits and regulation of timings of stage carriage, there can be no presumption in law that the power to grant stage carriage permit also included the power to regulate the timings as an incidental power to issue stage carriage permits. The last objection of the learned counsel for respondents No. 1 to 4 is that the petitioner has invoked the jurisdiction of this court under Article 199 of the Constitution without exhausting alternate remedy or appeal provided under Section 66 of the Ordinance. Besides, the fact that Section 66 of the Ordinance did not specifically provide for an appeal against the order altering the timings under Section 50(3) of the Ordinance, and as such the right of appeal was a doubtful one, the order of respondent No. 1 was challenged on the ground of lack of jurisdiction and as such the remedy under Article 199 was most appropriate. The learned counsel for the respondent has relied on the case of Allah Ditta v.
Malik Aijaz (1986 S.C.M.R. 959) but in our view the case relied on by the learned counsel is no authority for the proposition that existence of an alternate remedy by way of appeal is bar to the filing of a petition under Article 199 of the Constitution even where the order is challenged on the ground that it is patently without jurisdiction. For the aforesaid reasons we allow this petition and declare the order dated 24th of November, 1987, passed by the respondent No. 1 as without lawful authority and of no legal effect. There will be no order as to costs.
H.B.T.N-A5/K