' HUSSAIN ADIL KHATRI, J.---The petitioners, who are holders of permits for stage carriages, have assailed order dated 22-1-1995 issued by Provincial Transport Authority, whereby respondent No, 2, the holder of permits for contract carriages, has been granted permission for halting contract carriages at the places specified in the said letter, viz. Tin Hatti, Al-Karam Square, Aisha Manzil, Gulberg Traffic Chowki, Sohrab Goth and New Sabzi Mandi Super Highway for not more than ten consecutive minutes for picking up and setting down the passengers within the urban area of Karachi further subject to the condition that any violation in this respect will render the permission liable to be revoked.
2. The main contention raised by the petitioners is that by providing the above halting points for the purpose of picking up or setting down the passengers, the contract carriages owned by respondent No, 2, have been virtually allowed to be plied and used as stage carriages in violation of the provisions of Motor Vehicles Ordinance, 1965 and Motor Vehicles Rules, 1969 (hereinafter referred to as "the Ordinance" and "the Rules" respectively). According to the petitioners, respondent No,1, by its above Act, has given licence to the second respondent to pirate upon their business.
3. For proper appreciation of the submissions of the learned counsel for the petitioners, it would be appropriate to refer to the provisions of the Ordinance relating to the aforesaid two categories of the carriages.
' Subsections (5) and (37) of section 2 of the Ordinance define the "Contract Carriage" and "Stage Carriage" respectively as under:-- "2(5). 'Contract carriage' means a Motor Vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum and from one point to another without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab notwithstanding that the passengers may pay separate fares.
2(37). 'Stage carriage' means a Motor Vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey."
4. The only common factor between the two carriages is that they carry passengers for hire or reward; otherwise the bare reading of their respective definitions makes it clear that they form two distinct categories.
' In so far as the contract carriage is concerned--
(a) the hire contract is for the use of the vehicle as a whole;
(b) the contract has to be at a fixed or agreed rate or sum;
(c) for carrying a passenger or passengers from one point to another without stopping to pick up or set down along the route line passengers not included in the contract. To put it in other words, if the contract so provides, such passengers who are included in the contract for hire, may be picked up or set down along the line of route.
' As against the above, the stage carriage carries the passengers for hire or reward paid by or for individual passengers, either for the whole journey or for stages of the journey. Thus, stage carriages are used for the entire journey or any stage of the journey, on payment of separate fares by or for the individual passengers as against the concept of contract carriage which is hired as a whole under a contract for journey from one point to another.
5. The distinctive features of the aforesaid two carriages are highlighted by the respective provisions of the Ordinance and the Rules.
Section 53(1) (b) and (c) of the Ordinance relates to conditions to be imposed on permits for contract carriages and in so far it is relevant, is reproduced hereinbelow:- "53. Power to restrict the number of contract carriages and impose conditions on contract- carriage permits.--(1) A Regional Transport Authority may, after consideration of the matters specified in section 52--
(a) ....
(b) refuse to grant a contract-carriages permit, or grant a contract-carriages permit in respect of a particular contract-carriage or a particular service of contract-carriages in such forms as it may, subject to the rules made under section 69, deem fit; provided that no person shall be granted a contract-carriage permit for any area not specified in the application made by him under section 51;
(c) attach to the contract-carriage permit any prescribed condition or all or any one of the following conditions, namely:--
(i) that the contract-carriage or contract-carriages shall be used only in a specified area or on a specified route or routes; that except in accordance with specified conditions no contract or hiring may be entered into for transporting goods or passengers in the contract-carriage or carriages outside a specified area; that subject to specified conditions, goods be carried in contract-carriage to the exclusion of or in addition to passengers;
(iv) .....................
(v) that, in the case of vehicles other than motor cabs, specified rates of hiring not exceeding specified maximum shall be charged;
(vi) .....................
(vii) .....................
(viii)that specified conditions of the permit shall be liable to be varied, and that further specified conditions may be attached to the permit by the authority at any time on due notice being given to the permit holder;
(ix) that the conditions of the permit shall not be departed from save with the approval of the authority. (Emphasis supplied).
' Pursuant to section 53(1)(b) above, the conditions to be imposed on permits for contract-carriage have been provided for under Rules 117 and 246 of the Rules. Rule 117 in so far as it is relevant for the present purpose, is reproduced below:-- "117. Log books and complaint books to be maintained by the drivers of certain transport vehicles.--
(1) The driver of every contract carriage other than a motor cab, and of every goods vehicle for which a public carrier's permit has been granted shall maintain a log book and shall enter particulars of every hiring therein.
(2) The particulars to be entered in the log book shall be:-(i) in the case of a contract-carriage:--
(a) the name of the hirer, with sufficient particulars to enable him to be identified;
(b) the approximate number of persons included in the party;
(c) the starting point and finishing point of the trip and the route to be followed;
(d) the date and time from which the hiring has effect;
(e) the date and time when the journey is expected to be completed; and ' Rule 246 reads as under:-- "246. Halting of contract-carriages.--A Regional Transport Authority may impose on the use of any contract-carriage, or any stage-carriage when the same is being used as contract-carriage, a condition that the vehicle shall not be halted for more than ten consecutive minutes in any public place in an urban area save at parking place or, in the case of a motor cab, a cab rank, dilly appointed under section 80 or at a stand."
6. As against the above, the subsections (2) and (3) of section 50 of the Ordinance prescribe conditions for stage-carriage permit as under:- "50. Conditions for grant of stage-carriage permit.---(1)
(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).
(ii) that a specified number in return trips of daily service shall be maintained on the route or routes specified in the permit and that they may be varied only in accordance with the specified conditions;
(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 place as may be prescribed, passengers shall not be taken up or set down except at specified places;
(vii) ..................... .
(viii)that tickets shall be issued to passengers for the fare paid.
(3) the Provincial Transport Authority may regulate the timings of departure of stage-carriages, whether they belong to one or more owners."
' Rules 240 to 245 relate to stage-carriages. The first two and the last rules are relevant to the issue under consideration. They are reproduced'
"240. Halting of stage-carriages.--No stage carriage shall be halted in an urban area for more than five minutes consecutive for the taking up or setting down of passengers or at any time during the course of a run except at stand.
241. Bus stops.--(1) The District Magistrate may direct that in any street or any road in an urban area notified by him in this behalf the notification being made by public proclamation or in such other manner as the District Magistrate may deem fit, no stage carriage halt to take up or set down passengers except at a place appointed by him as a bus stop or at a place appointed by the Regional Transport Authority, as a stand.
(2) No stage-carriage shall be halted at a bus stop for longer than is necessary to take up such passengers as are waiting when the vehicles arrive and to set down such passengers as wish to alight."
245. Preceding rules not applicable to contract-carriages.--Nothing in rule 240 or 242 or any direction made under rule 241 shall apply to a stage-carriage when it is being used under due authority as a contract-carriage or as a vehicle for the carriage of goods without passengers, provided that a board has been affixed to the vehicle bearing the inscription 'On Contract' or 'Carrying Goods Only', as the case may be, and provided particulars of the hiring have been entered in the log book of the vehicle."
7. On reading of the above provisions side by side, it becomes clear that the law has conceived stops on the route for stage carriages (section 50(2)(iv), termed as Bus Stop in Rule 241 and are required to be notified for the purpose of taking up or setting down the passengers. It prohibits stage carriages from taking up or setting down passengers from any place other than the bus stops and halting at bus stop for longer than is necessary to take up such passengers as are waiting for the carriage and to set down such passengers as wish to a alight. As against the above, there are no analogous provisions for the contract-carriage. On the contrary, Rule 245 lays down that nothing in Rule 240 or 242 or any direction made under Rule 241 shall apply even to stage- carriage when it is being used as contract-carriage. The latter provisions by implication prohibit contract-carriage from halting for taking up or setting down passengers, with the exception for passengers included in the hiring contract.
The comparative study of the aforesaid provisions, however, elaborates the aforesaid provisions relating to the two categories of carriages under consideration. As already noted above, the contract-carriage is to be hired as a whole in the name of the hiring party and so also the number of the passengers included in the party are to be entered in the log book. In so far as stage carriages are concerned, the provisions have been made for specified number in return trips of service to be maintained on the route or routes specified in the permit and issuance of tickets to the individual passengers for the fare paid. Even the timings are to be specified for departure of the stage-carriage. Thus the stage-carriages are used by the individual passengers either for the whole journey or stage of a journey and the fare is to be charged in accordance with the fare-table approved by the Regional Transport Authority and such tables are required to be exhibited on the stage-carriage, its stands and stops on the route. The above distinctive features, clearly establish that the contract-carriage is not permitted to pick up the individual passengers and that there is no concept for any stage or part of the journey as reflected in the provisions of rule 117 (supra) which requires entry of the starting point and finishing point of the trip in the log book, for the totality of the members of the party, who hire the contract-carriage.
' The permit issued for the contract-carriage to respondent No, 2, in consonance with the prescribed pro forma lays down, "this permit does not entitle the holder to use the vehicle herein prescribed as stage-carriage". In view of the aforesaid conditions, the contract-carriage-cannot be permitted to be used as stage-carriage. The said condition is incorporated in the permits issued to respondent No, 2, some of which have been brought on record.
Rule 245 excludes the application of Rule 241 to contract-carriage, which provides for notifying the bus-stops for stage-carriage. Looking at the aforesaid provisions, it is clear that respondent No, 1 has no jurisdiction whatsoever to specify bus-stops, which have been termed in the impugned notification as halting points, to facilitate picking up or setting down individual passengers from various places, against the fare to be paid individually by each such passenger.
8. However, learned counsel for respondent No, 2, relying on section 80 of the Ordinance and Rules 246 and 248 of the Rules, submitted that the stands and stops are to be prescribed under the law for all public service vehicles and, therefore, the contract-carriages can be halted or stopped at such specified places and consequently the impugned order issued by respondent No, 1, specifying halting points, cannot be termed to be illegal being in consonance with the aforesaid statutory provisions. It was further submitted by him that after introduction of the stage-carriages, described by him as ordinary buses, air-conditioned buses and coaches have been allowed to ply on Super Highway and they start from various points and have various halting stations. According to him, when a passenger is picked up from any halting point, he enters into the bus and pays the fare, a contract thus comes into existence and as such a contract-carriage remains a contract-carriage.
Explaining the above, he referred to the last sentence in definition of the term "contract-carriage" to the effect that "passengers may pay separate fares" which according to him would mean that there could be separate contract with each passenger.
' Section 80 of the Ordinance reads as under:-- "80. Parking places and halting stations.--Government or any authority authorised in this behalf by Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time and may determine the places at which public vehicles may stop for a longer time than is necessary for taking up and setting down of passengers."
' The above section contains enabling provisions. The first part deals generally with motor vehicles and part two with public service vehicles. It enables the Government or any authority in this behalf to determine the places at which the motor vehicles may stand either indefinitely or for a specified period of time and the places at which public service vehicles may stop for a longer time than is necessary for taking up and setting down of passengers. Rule 246 deals with contract-carriage.
Under the said Rule, the Regional Transport Authority has been empowered to impose on the use of any contract-carriage, a condition that the vehicle shall not be halted for more than ten consecutive minutes in any public place in any urban area save at parking place or, in the case of a motor cab, at the cab rank, duly appointed under section 80 or at a stand. Rule 241 deals with stage-carriage. Sub-rule (2) thereof provides that no stage-carriage shall be halted at a bus stop for longer than is necessary to take up such passengers as are waiting when the vehicle arrives and to set down such passengers as wish to alight. Section 80 and Rule 246 do not in any manner suggest that contract-carriage can be halted or points of halting can be fixed for the purpose of taking up or setting down the passengers by contract carriage. Rule 248 relied upon by the learned counsel for respondent No, 2 negates rather than advancing the case of the said respondent, by excluding application of Rules 240 to 242, even to stage-carriage when it is being used as contract-carriage.
' Rule 246 of the Rules imposes the condition to the extent that a contract-carriage shall not be halted for more than ten consecutive minutes in any public place in an urban area save at parking places or in the case of a motor cab, a cab rank, duly appointed under section 80 or at a stand.
The terms "parking place" and "stand" are not used in the sense in which the word "stops" has been used in section 50 of the Ordinance. The said provisions make it mandatory for the stage-carriages that the passengers shall not be taken up or set down except at specified places. If the intention of the Legislature had been to provide stands or stops for the contract-carriages, in the same manners they are provided for stage-carriages, it would have been so expressed specifically. On the contrary, to think of having stops for the contract-carriages, in the same manner and sense in which they have been provided for the stage-carriages, the distinction envisaged in the two concepts of the carriages would disappear.
9. Coming to the second submission of the learned counsel for respondent No,2 to the effect that by picking up individual passengers, there comes into existence separate contract with each passenger on payment of separate fare by each of them, may suffice to observe that no such inference can be drawn from the words "notwithstanding that passengers may pay separate fare" used in the definition clause.
The maximum that one can read in the above definition in conjunction with Rule 117 of the Rules, would import that the persons included in the party or group of persons who hire the carriage may contribute the hire charges to be paid for the contracted trip. It is not relevant if each member of the party pays separate fare to make up the sum agreed to be paid by the party as hire charges.
'What is important is the fact that the contract-carriage is engaged as a whole, by the party or group of persons, under a contract, at or for a fixed or agreed rate or sum, for a journey from one point to another without stopping to pick up or set down the passengers, subject to the exception provided for. The words "passengers may pay separate fares" do not lead to the conclusion that the contract-carriages are entitled to or have been permitted to accept individual passengers for the whole or separate stages of journey from one point to another.
' It is not disputed by the learned counsel for respondent No, 2 that the contract-carriages are being plied by his clients in between Hyderabad and Mirpurkhas and that the said contract- carriages stop at various places, pick up passengers from and drop them at the places individually desired by them. The passengers, as stated by the learned counsel, individually purchase the tickets for use of the stage carriages from the booking offices set up by respondent No, 3 at various places and stands. As the record shows, an exception was taken by the administration to the aforesaid conduct of the respondent No, 2 and consequently a directive dated 9-3-1993 was issued to the Senior Superintendents of Police of Badin, Thatta and all the four districts of Karachi asking to direct the concerned traffic police staff "to ensure that the air-conditioned vehicles do not indulge any stopping along the route for picking up the passengers and violators be challaned and sent up to Courts for initiating necessary legal action".
' Subsequently, it appears that respondent No, 1 approached the Provincial Transport Authority to oblige them by passing the order as contained in the impugned letter.
10. The law having prescribed different conditions for the permits to be issued to different categories of the public service vehicles, the authorities functioning under the Motor Vehicles Ordinance, 1965, have to abide by, while issuing permits, the provisions of the said Ordinance and the impugned act on their part, whereby the use of the contract-carriages has been converted into stage carriages, is in violation of the law and cannot be sustained.
11. The learned counsel for the petitioner submitted that the phenomenon created by respondent No, 3 has led to an unhealthy competition to the detriment of the bona fide permit holders of the stage carriages.
In reply the learned counsel for respondent No, 2 took the stand that contract-carriages charge higher fare than the one charged by the petitioners for the same journey and therefore there is no question of any unhealthy competition between the two. The submission is misconceived. Under the law the stage-carriages are not allowed to remain at the stop or stands for any duration longer than required for setting down or picking up the passengers waiting for the carriage. They are not allowed to wait for the passengers. As against the above, the contract-carriages have been allowed ten minutes time to stay at the so-called halting points for picking up passengers and simultaneously to stop at any public place for the said duration. It is obvious that respondent No, 2 has been put in advantageous position as against the petitioner, whose business has been adversely affected.
12. It was lastly contended by the learned counsel for respondent No, 2 that the alternate remedy by way of appeal being available, the present petition is not maintainable. It is settled law that in cases where the alternate remedy is not equally efficacious or speedy or where the order impugned, on the face of it, is patently illegal or without lawful authority or suffers from such legal infirmities which are apparent on the face of the order, the Court may, in spite of existence of an alternate remedy, exercise its jurisdiction under Article 199 of the Constitution and grant the relief to the aggrieved party.
' In the present case, the impugned order as contained in the letter is patently illegal and in violation of the statutory law and has been issued in excess of authority vested in respondent No, 1.
The objection is therefore overruled.
13. Mr. Abdul Ghafoor Mangi, the learned Advocate-General, Sindh has supported the petition and conceded that respondent No, 1 had acted in excess of authority and in violation of the relevant law in varying the terms of the permit earlier issued for contract-carriages belonging to respondent No, 2.
14. We are of the considered view that respondent No, 1 has acted in excess of authority and contrary to the provisions of the Motor Vehicles Ordinance, 1965 and the Rules and as such the impugned letter dated 22-1-1995 is hereby struck down.
' The petition is accordingly allowed as prayed with costs.