P L D 1960 (W (PLP)

SHABIR AHMAD, J.‑

This judgment will govern not only this appeal but Letters Patent Appeals 25 of 1956, 26 of 1956 and 15 of 1957, as well, because the main question that falls for deter mination in all these appeals is the same.

2. All the four appeals are directed against the judgments of Kaikaus, J. by whom the, suits out of which Letters Patent Appeals Nos. 24, 25 and 26 of 1956 arise were disposed of by one judgment dated the 21st July 1956 and the suit out of which Letters Patent Appeal No. 15 of 1957 arises by another which was passed on the 11th of February 1957. The suits were instituted by some transport companies, which were affected by notification (which will be referred to hereinafter as the impugned notification) issued by the Provincial Government of the Punjab under subsection (4) of section 43 of the Motor Vehicles Ac (IV of 1939). The effect of the notification was that the permits granted by the Regional Transport Authorities to the appellant companies to ply their transport vehicles for hire were cancelled in order to enable the Punjab Road Transport Board to use its transport vehicles on the routes thus rendered vacant Some of the transport companies affected by the notification instituted suits in Courts of Civil Judges having jurisdiction to hear them, but on applications being made to this Court for the transfer of the suits to this Court to be disposed of on the original side, the suits were transferred to the file of this Court and their trial was entrusted by the then Chief Justice to Kaikaus, J. He consolidated the suits of Amritsar‑Pathanko Transport Company, Limited, Lahore, the District Transport Co‑operative Society, Limited, Lahore, and the National Transport Co‑operative Society, Limited, Lahore, out of which Letter; Patent Appeals Nos. 24, 25 and 26 of 1956 arise respectively and disposed of them by one judgment passed on the 21s July 1956, which is reported as Amritsar Pathankot Transport Company Ltd. v. The Province of Punjab etc. (P L D 1956 Lah. 900) while the suit of the Gujrat‑Punjab Bus Limited, Gujrat, was disposed of be a separate judgment passed on the 11th February 1957, which is reported as Gujrat‑Punjab Bus Limited v. The Province of Punjab etc. (P L D 1957 Lah. 345).

3. In the plaints the attack on the impugned notification was mainly on the ground that subsection (4) of section 43 o1 Motor Vehicles Act, 1939 (IV of 1939) was ultra vires the Federal Legislature which had passed it. This subsection, which was inserted by section 2 of the Motor Vehicles (Amendment) Act, 1951 (XVII of 1951) reads as follows :‑ "(4) Notwithstanding anything in the foregoing subsections the Provincial Government may by a notification under this subsection :‑ (a) cancel generally or in relation to a specified area any permit or class of permits granted under this Chapter in respect of transport vehicles in order to enable the Road Transport Board to use its transport vehicles on the routes thus rendered vacant ; and (b) give effect to the terms of any agreement entered into with the Central Government relating to the regulation of motor transport generally and in particular to its co‑ordi nation with railways." The Motor Vehicles (Amendment) Act, 1951 (Act XVII of 1951) also inserted sections 43‑A, 43‑B and 43‑C in the Motor Vehicles Act, 1939. Subsection (1) of section 43‑A originally reads as follows: "Where a Provincial Government decides to operate transport services itself it shall constitute a Road Transport Board" and the other provisions of the section dealt with the constitution and powers of the Road Transport Board. Section 43‑B was to the effect that the jurisdiction of the transport authorities created under the Motor Vehicles Act, as originally enacted in 1939, was barred with respect to Road Transport Board while section 43‑C said that the Road Transport Board shall have power to acquire any property‑movable or immovable‑used in, or for, or ancillary to, the operation of any motor transport conducted under a permit granted under the Act, and also laid down the procedure regarding such acquisition, and the payment of compensation for it.

4. The suits were resisted and on the pleadings of the parties the following issues were framed in the suits which are the subject of Letters Patent Appeals No. 24, 25 and 26 of 1956‑ (1) Whether the order of the Punjab Government canceling the four permits of the plaintiff on the Lahore‑Lyallpur, Sheikhupura and Shahkot routes is void for reasons stated in paragraph 9 of the plaint ? (2) Whether the plaintiff can be granted an injunction as claimed in view of causes of action as disclosed in the plaint ? (3) Whether the circumstances of the case are such that the discretion of Court to grant an injunction should be exercised in favour of the plaintiff ? Issues substantially similar to these were framed in the suit, out of which Letters Patent Appeal No. 15 of 1957 arises though their number was two. Decision on the main issue that is the one dealing with the validity of the impugned notification was against the plaintiffs in both the suits and decision adverse to the plaintiffs followed on the remaining issues, with the result that the suits were dismissed.

5. On the crucial question that falls for determination, namely, the validity of subsection (4) of section 43 of the Motor Vehicles Act, 1939 (which will in the sequel be referred to as the "impugned subsection"), the main argument of Mr. A. K. Brohi, who appeared for the appellants in Letters Patent Appeals Nos. 24, 25 and 26 of 1956, which was adopted by Mr. Mahmood Ali, who appeared for the appellant in Letters Patent Appeal No. 15 of 1956, was that by enacting the impugned subsection the Federal Legislature had ,conferred on the Provincial Governments the power to acquire property belonging to persons to whom permits to ply vehicles had been granted by the Regional Transport Authorities appointed under the Motor Vehicles Act, 1939, and as no provision had been made with regard to giving of compensation for the loss of the route permits the impugned subsection offended against the constitutional provisions in force at the time it was enacted. At the time the impugned subsection was enacted the Constitution of Pakistan was governed by the Government of India Act, 1935, as adopted for Pakistan, and subsections '(1), (2) and (5) of section 299 of that Act read as follows :‑ "299 (1) No person shall be deprived of his property save by authority of law. (2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorizing the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning any commercial or industrial undertaking, unless the law provides for giving compensation for the property acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined and given. (5) In this section "land" includes immovable property of every kind and any right in or over such property, and "undertaking" includes a part of undertaking."

6. The contention of Mr. Brohi based on subsection (2) of section 299 of the Government of India Act was that by means of the impugned subsection the Federal Legislature had given the Provincial Government power to acquire commercial under takings and, therefore, provision had to be made in the Legislation which authorised the acquisition for payment of compensation for everything that was acquired including the route permits. Mr. Mahmood Ali though adopting this contention of Mr. Brohi added that the acquisition of the permits permitted by the impugned subsection amounted to acquisition for public purposes of land as well and, therefore, payment of compensation had to be provided for which nether the impugned subsection nor any other part of the Motor Vehicles (Amendment) Act, 1951 (XVII of 1951) had done. It was urged by Mr. Brohi and Mr. Mahmood Ali that the transport companies affected by the impugned notifications had been granted permits for three years and in the hope that they will be able to reap benefits for three years had invested a lot of money and as permits were cancelled long before they were due to expire, the companies had suffered a good deal of loss. To my mind the question whether or not the cancellation of a permit under clause (a) of the impugned subsection has occasioned any loss to the person deprived of it is irrelevant because if the cancellation amounts to acquisition dealt with in subsection (2) of section 299 of the Government of India Act, 1935 provision for compensation had to be made by the legislative measure which authorised acquisition, irrespective of the consideration whether or not any loss will occur to the person whose property will be acquired. What the amount of compensation in a case of any acquisition should be will naturally depend on the circumstances of each case, but a law passed in Pakistan by the Federal Legislature or a Pro vincial Legislature during the time when the Government of India Act, 1935 was in force had, if the property to be acquired was one of the kinds mentioned in section 299, to provide for giving com pensation for the property acquired and had either to fix the amount of compensation or specify the principles on which and the manner in which it was to be determined and given and if the law failed to do that it had no valid existence and acquisitions made in exercise of powers given by it would be invalid and inoperative.

7. Chaudhrl Nazir Ahmad Khan, the learned Attorney General of Pakistan, who appeared for the Government of Pakistan, as well as Mr. Jamil Husain Rizvi, the learned Advocate‑General of West Pakistan, who appeared for the Provincial Government and Sardar Muhammad Iqbal, who appeared for the West Pakistan Transport Board, contended that a route‑permit granted under the Motor Vehicles Act was not property of any of the kinds mentioned in clause (2) of section 299 of the Government of India Act, 1935, and, therefore, even if it be held that the impugned section by giving the Provincial Government the power to cancel the route‑permits already granted, had authorised the acquisition of property by the Provincial Government, subsection (2) of section 299 of the Government of India Act, 1935 had no application. They added that even if it, be held that a permit was one kind of such property, what was done by the impugned subsection was the conferring of authority on the Provincial Government to deprive persons of their property and as that deprivation would not amount to acquisition of the property by the Provincial Government, it was not necessary for the Federal Legislature to provide for payment of compensation for the deprivation and the impugned subsection could not be held to be invalid. It was further urged that the Motor Vehicles (Amendment) Act, 1951 (XVII of 1951) made provision for payment of compen sation if tangible movable or immovable property of any person was taken over by a Road Transport Board and, therefore, the provisions of section 299 of the Government of India Act of 1935 had not been contravened.

8. The main questions that require determination are whether there is any difference, and if so what, between depriving a person of his property in the terms of subsection (1) of section 299 of the Government of India Act and compulsorily acquiring his property in the terms of subsection (2) of that section and within the ambit of which clause what was done by means of the impugned notifications fell. It can hardly be doubted that there is a marked difference between the deprivation of a person of some property and the acquisition of that property by some one. This difference can be brought out by saying that while every acquisition of property results in depriving someone of his property, every deprivation of a person of property does not amount to its acquisition by someone else. For example, if a statute provides‑as some statutes do‑that food in possession of anyone which is not fit for human consumption can be destroyed by Government, the destruction of the food will result in the deprivation of the owner of his property but cannot be considered to be acquisition of the food by the Government and to a case of this kind subsection (1) but not subsection (2) of section 299 of the Government of India Act, 1935, would have application. If, however, the deprivation of a person of his property is with the object of giving the property to Government, the case is one of deprivation of the person of that property as well as of acquisition by the Government and will be valid only if law allows it. The law that allows the acquisition can be of two kinds, one being that which concerns itself with compulsory acquisition of property and the other which results in acquisition but is not for the purpose of compulsory acquisition. Examples of 'laws which though not made the object of compulsory acquisition allow acquisition of property are those which allow sale of property in execution of decrees or for realisation of fines while an example of laws which concern themselves with compulsory acquisition of property is the Land Acquisi tion Act, 1894. It is to laws of the kind of which the Land Acquisition Act is an example that subsection (2) of section 299 was meant to apply. It is keeping these principles in view that one has to determine whether or not the impugned subsection by which the Federal Legislature conferred on the Provincial Government the power to cancel route‑permits already issued amounted to a law relating to compulsory acqui sition of property. It need hardly be emphasized that while determining the validity of a legislative measure the Courts have to consider its main object or what has sometimes been pithily e called its pith and substance and are not to take the nomen clature as conclusive. It will be noticed that clause (a) of the impugned subsection authorised the Provincial Government to cancel permits granted by Regional Transport Authorities under the Motor Vehicles Act, 1939, in respect of transport vehicles, in order to enable the Road Transport Board to use its own transport vehicles on the routes thus rendered vacant. That the person to whom a permit to ply transport vehicles had been granted would be deprived of that permit when it is cancelled can hardly be doubted and when one finds that the deprivation was with the object of benefiting the Provincial Transport Board which body was to work under the direction and for the benefit of the Provincial Government, it becomes clear that what the Provincial Government was enabled to do was not only to deprive persons of the right to use the public roads to ply transport vehicles for hire but also to vest that right exclusively in itself. The right which a permit‑holder had to ply transport vehicles would after the issue of the notification, contemplated by the impugned subsection, become wholly and solely vested in a Road Transport Board working for the Provincial Govern ment and the mere fact that the Provincial Government had even without the impugned subsection the right to ply transport vehicles on a route for which permits had been granted to individuals or to private or public companies cannot alter the nature of the act to do which powers were given to the Provincial Government. If the Provincial Government had been merely authorised to ply their vehicles on the routes for which permits had been issued already to individuals or companies by the Regional Transport Authority without being given the power to cancel the route permits to ply transport vehicles which had already been issued or provision had been that no route permit could be issued to anyone else for a route on which the Provincial Government plied its transport vehicles, the case would not have been one of acquisition by the Provincial Government but as the impugned subsection makes it clear that persons were to be deprived of their route permits for the benefit of the Provincial Government which could set' up a Provincial Transport Board, I am clearly of the opinion that the cancellation of permits provided for by the impugned subsection amounted to acquisition.

9. The question that arises now is whether or not the acquisition by the Government is hit by subsection (2) of section 299 of the Government of India Act, 1935 because if it is not, the mere fact that the property was acquired by the Provincial Government under the authority of no other law but the impugned subsection would not make the impugned subsection invalid. That the acquisition was for a public purpose is clear from the fact that the earnings were to go to the coffers of the Provincial Government to be used for the benefit of the general public and if, it was a case of compulsory acquisition of a commercial or industrial undertaking or a part of it or of land the acquisition will be of the kind mentioned in subsection (2) of section 299 of the Government of India Act, 1935. What is commercial or industrial undertaking has not been defined evidently because the definition of such terms of every day use was considered unnecessary. It was not denied on behalf of the respondents that plying transport vehicles for hire was a commercial undertaking and indeed a denial would have had no convincing reasons to support it. It was, however, urged that a route‑permit issued under the Motor Vehicles Act, 1939 could not on any ground be considered to be a part of that undertaking. The commercial undertaking of the person who has been granted a permit to ply transport vehicles for hire is the vehicles, their spare parts, the store of fuel and oils, bus stands, offices, and the permit under the Motor Vehicles Act, 1939 the possession of. which authorised its holder to ply transport vehicles on the public highways to which the permit relates. If a person had all the things mentioned above except the permit to ply his transport vehicles for hire required under the Motor Vehicles Act, 1939 be could not ply transport vehicles for hire and, consequently, it can hardly be doubted that the route‑permit was an integral and a very important part of the commercial undertaking of a person plying transport vehicles for hire on al public highway. It is true, as pointed out by the learned Attorney‑General, that the cancellation of his route permits would not deprive a person of his right to drive on the public highways in his transport vehicles but that is hardly a relevant matter because it is obvious that the right of using his transport vehicles on hire which he had by virtue of the permit of which be has been deprived ceases to exist. That the cancellation of permits under clause (a) of the impugned subsection amounted to compulsory acquisition is patent and, consequently, I am of the view that the power given to the Provincial Government by clause (a) of the impugned subsection ' was the power to compulsorily acquire parts of a commercial undertaking and subsection (2) of section 299 of the Government of India Act, 1935, applied to it. In view of this finding I do not consider it necessary to determine whether the additional ground of attack on the impugned subsection made by Mr. Mahmood Ali, by urging that the case was one of acquisition of land as well, would succeed.

10. Neither the impugned subsection nor any other part of Act XVII of 1951 by which the impugned subsection was inserted in the Motor Vehicles Act, 1939, fixed the amount of compen sation or specified the principles on which and the manner in which compensation was to be paid by the Provincial Government to persons whose permits were cancelled under clause (a) of the impugned subsection, evidently because the cancellation of permits to ply transport vehicles for hire was not considered by the Legislature which passed Act XVII of 1951 to be compulsory acquisition of any of the kinds of property mentioned in sub section (2) of section 299 of the Government of India Act. Though that provision of law was not relied upon by the learned counsel for any of the three respondents, I have considered the question whether clause (a) of subsection 4‑A of section 299 of the Government of India Act, 1935, which was inserted by section 3 of the Validation of Laws Act, 1956 passed by the then Constituent Assembly of Pakistan and was to have retrospective operation, could be of any avail to the respondents. That provision does no doubt possess great curative powers but is not the panacea for all shortcomings of legislative measures passed by the Legislatures in Pakistan with regard to com pensation payable for compulsory acquisition of property mentioned in subsection (2) of section 299 of the Government of India Act. Clause (a) of subsection 4‑A of section 299 of the Government of India Act comes into play only where a law, which in essential matters complies with the dictates contained in subsection (2) of that section, is defective in matters of detail. The impugned subsection did not even attempt to comply with subsection (2) of section 299 of the Government of India Act and cannot, therefore, call subsection (4‑A) of that section to its aid. The omission of the Federal Legislature to comply with subsection (2) of section 299 of the Government of India Act. 1935, was fatal for clause (a) of the impugned subsection, as the fact that payment of compensation was provided for by means of section 43‑C of the Motor Vehicle Act for acquisition of that tangible movable and immovable property of the person whose permit was cancelled which the Road Transport Board may choose to acquire does not alter the position in the least. It follows, therefore, that the impugned notifications which were issued by the Provincial Government on the authority of clause (a) of section 43‑A of the Motor Vehicles Act, 1939, were void and inoperative.

11. I will now deal with a contention raised by Sardar Muhammad Iqbal, Advocate, who appeared for the Provincial Road Transport Board. He urged that the permits which were cancelled by the impugned notifications were issued after the insertion of the impugned subsection in section 43 of the Motor Vehicles Act, 1939, and as the appellants knew or ought to have known that the permits were liable to be cancelled under clause (a) of subsection (4) of section 43 of the Motor Vehicles Act, 1939, they are not entitled to any relief. This contention is without substance. Clause (a) of subsection (4) of section 43 of the Act was void and inoperative from the beginning and had no valid existence. Consequently, the fact that persons against whom it was used probably knew of its existence, which may possibly have been of some avail to the respondents as a ground for having the amount 'of damages fixed at a moderate figure if there were a claim for damages for illegal cancellation of permits, can be of no avail to them to these suits.

12. One or two other contentions which were half‑heartedly raised by the learned counsel for the appellants need not be considered and I will take up the, question of the relief that should be granted to the appellants. As the notifications issued under clause (a) of subsection (4) of section 43 of the Motor Vehicles Act, 1939, whereby the Punjab Government cancelled some route permits were void and inoperative, each appellant is entitled to the declaration prayed for in the suit but the question of the grant of injunction has still to be dealt with. It is discretionary with a Court to issue an injunction but in the present cases there was nothing which could have made me refrain from issuing one. But another consideration arises here. The period for which the permits which were cancelled were issued has since expired and no occasion for issue of an injunction arises. Consequently I would .accept all the four appeals to this extent that the declaration prayed for will be granted but the injunction will be refused and the appellants will get their costs of the litigation from the respondents each of whom will pay 1/3rd of the costs. I would fix counsel fee in each appeal at Rs. 500, or the fee mentioned in the fee certificate, if any, whichever is less. KAYANI, C. J.‑

I agree. A.H. Order accordingly.