P L D 1957 (W (PLP)

KAIKAUS, J.‑

This judgment will dispose of a suit filed by the Gujrat‑Punjab Bus Ltd., impeaching an order of the Punjab Government by which some route permits held by the plaintiff under the Motor Vehicles Act were cancelled. The plaintiff company carries on the business of plying motor‑buses for hire on various routes in West Pakistan. The Motor Vehicles Act makes incumbent on every person who desires to ply a motor vehicle for hire on a public road to obtain a permit from the Regional Transport Authority under the provisions of Motor Vehicles Act. Before the amendment of the Act in 1951, the Regional Transport Authority had the power in certain circumstances of cancelling a permit which had been issued by it. By an amendment introduced in 1951 the Provincial Government was empowered to create a Road Transport Board with the object of plying its own vehicles on hire and it was further empowered to cancel permits issued in favour of any person for the purpose of creating room or a monopoly for the, Road Transport Board. Acting under the authority granted to it by the amendment, the Punjab Government constituted a Road Transport Board on 15th August 1951. In 1954 the plaintiff company held three permits on the Madi Baha‑ud Din‑Bherowal via Kuthala Sheikhan, Mandi Baha‑ud‑Din adirabad via Kuthala Sheikhan and the Phalia‑Qadirabad routes. By a notification dated the 6th of April 1954, the Punjab Government, purporting to act in the exercise of the new power granted under section 43 (4) (a) of the Motor Vehicles Act, cancelled the permits of the, plaintiff company on these three routes. In the present suit the plaintiff company has challenged the validity of this order on the following grounds:‑-- (1) That the amending Act XVII of 1951 is ultra vices of the Central Legislature because‑ (a) It is opposed to the provisions of section 299 of the Government of India Act ; (b) the Central Legislature did not possess the power of delegating the authority of constituting a Road Transport Board to the Provincial Government ; and (c) the authority delegated to the Provincial Government for framing rules is ultra vires of the Legislature. (2) The notification cancelling the permits of the plaintiff company is ultra vices because it does not mention, and has not in fact been issued for, the purpose for which alone an order could have been issued under section 43 (4) (a). (3) No Road Transport Board has been validly constituted as the rules under which it is operating have not been validly framed and the cancellation of permits could only have been for the purpose of assisting a validly created Road Transport Board. The issues framed in the case are :‑ (1) Whether the order of the Punjab Government cancelling the permits of the plaintiff company are void for reasons given in paragraphs 6, 7 and 8 of the plaint ? (2) Whether the plaintiff is entitled to an injunction against defendant No. 3, restraining it from plying its buses on the disputed route ? In July 1956, I had decided (by a single judgment) three suits filed by three different companies challenging the orders of the Punjab Government cancelling their route permits on similar grounds against the plaintiffs upholding the orders of cancellation. In view of my judgment in that case, the learned counsel for the plaintiff has confined his arguments to some new points raised by him. On the other hand, Mr. Faiyaz Ali, the Attorney‑General, has addressed me on even some of the points which I had decided in that case. I will in the present judgment deal only briefly with the points which have not been argued before me. Before proceeding, it will be convenient to quote sections 43 (4) (a), 43‑A, 43‑B and 43‑C of the Motor Vehicles Act. 43 (4) (a).‑Notwithstanding anything in the foregoing sub sections 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. 43A.‑(1) Where a Provincial Government decides so to do, it may establish a Road Transport Board for the purpose of operating road transport services, and every Board so established shall be a body corporate by the name "Road Transport Board" preceded by the name of the Province in which it is established, having perpetual succession and a common seal, and shall by that name sue and be sued, (2) Any Road Transport Board established before the commencement of this Act under subsection (1) of section 43A shall be deemed to have been established under that subsection as substituted by this Act, and all persons at any time employed for the purposes of any such Road Transport Board shall be deemed during the period of such employment to be public servants within the meaning of section 21 of the P. P. C., but shall not be deemed to be servants of any Government on the ground that they are employed by a Road Transport Board established by such Government. (2) The Board shall consist of seven members, of whom four including the Chairman shall be appointed by the Provincial Government and three by the Central Government. (3) Members of the Board shall hold office for such period, as may be specified in the order appointing them, but not withstanding the foregoing provision any member may resign or may be removed at any time, or may be re‑appointed, by the appointing authority. (4) The Provincial Government shall consult the Board in all matters relating to the co‑ordination of road and rail transport and in the fixation 'of fares and freights under this Chapter. (5) The Road Transport Board shall reserve for and allot to the Central Government, as represented by the railways, not less than 25% of its total share capital. (6) If a dispute arises between the Central Government and a Provincial Government in respect of any matter concerning the fixation of fares and freights, and no settlement is arrived at by negotiation, the dispute shall be referred to the arbitration of the Chief Justice of the Federal Court or of a Judge of the Federal Court nominated by him, and the award of the Chief Justice or judge afore said shall be final and binding on the parties and shall not be called in question in any Court of law nor shall anything in the Arbitration Act, 1940, apply to such arbitration. (7) The Provincial Government shall make rules, with the previous concurrence of the Central Government and not inconsistently with this Act, prescribing the powers and functions of the Board. 43B.‑‑(1) The Road Transport Board may operate motor transport on any route it may think fit and where it so operates such transport, the Provincial Transport Authority and the Regional Transport Authority shall, notwithstanding anything in this Act, have no jurisdiction in relation to that transport. (2) Where the Provincial Government has cancelled any permit or class of permits under clause (a) of subsection (4) of section 43, the Provincial Transport Authority and the Regional Transport Authority shall, notwithstanding anything in this Act, have no jurisdiction in respect of such permit or class of permits. 43C.‑(1) 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 this Chapter. (2) Such acquisition may be made by serving a notice of acquisition on the owner of the property, or if such owner is not readily traceable or the ownership is in dispute, by a notice of acquisition published in the official Gazette of the Province, and shall take effect from the beginning of the day on which the notice is served or published. (3) For any property so acquired there shall be paid compensation equivalent to the market value of the property acquired to be calculated in such manner as the Provincial Government may prescribe. (4) If any dispute arises as to the amount of compensa tion payable under subsection (3) it shall be referred to the arbitration of a person who is or has been a High Court judge and his award shall be final and binding on the parties and shall not be called in question in any Court of law or shall anything in the Arbitration Act, 1940, apply to the arbitration. The first point urged by the learned counsel for the plaintiff is that the notification of the Punjab Government is not in accordance with law inasmuch as it does not mention the purpose for which the order was passed and also because the order was in fact not passed for the purpose for which alone it could, under section 43 (4) (a), had been passed. So far as the first part of the argument is concerned, it does not deserve any serious attention, I reproduce below the operative part of the order :‑ In exercise of the powers conferred by clause (a) of subsection (4) of section 43 of the Motor Vehicles Act, 1939, the Governor of the Punjab is pleased to cancel the permits mentioned below granted under Chapter IV of the said Act, to the following Transport Companies in respect of the routes noted against each :‑ Serial No. Name of the company Route No. of Remarks permits The Mianwali Transport Co., Ltd., Mianwali. Mianwali‑Bhakkar 4 The Mianwali‑ Muzaffargarh Transport Co. Mianwali. Mianwali‑Bhakkar Mianwali‑Piplan. Mianwali‑Jandanwala via Ghulaman. Mianwali‑Darya Khan via Dullewala 2 1 2 The Bandial Bus Service, Bandial. Gunjial‑Piplan via Harnoli Gunjial‑Kalurkot via Harnoli. Gunjial‑Bhakkar via Rangpur Jandanwala Dullewala and Khansar. 2 2 The Gunjial Multi‑ purpose Co‑ope‑ rative Society, Gunjial. Gunjial‑Piplan via Harnoli. 6 Gujrat‑Punjab Bus, Service Ltd., Gujrat. Mandi Bahauddin‑ Bherowal. Mandi Bahauddin Qadirabad via Kuthala Sheikhan. Phalia‑Qadirabad. 1 1 1 In the first place it will be observed that an order under section 43 (4) (a) can be passed only for one purpose, i.e., in order to enable the Road Transport Board to use its transport vehicles on the routes thus rendered vacant. When the order says, therefore, that it is in exercise of the power under section 43 (4) (a), it is not unreasonable to say that the purpose has been sufficiently indicated. However, even if the purpose was not mentioned in the order that would make no difference to the validity of the order if in fact it was passed for the purpose for which in law it could be passed. There is no provision in the Motor Vehicles Act or in the general law which makes it incumbent on the Punjab Government while passing order of cancellation to mention in A the notification the purpose of the order so that the omission will render the order void. Whatever may be the effect of such an omission on the question of onus with respect to the validity of the order in so far as that validity depends upon the question of fact as to whether it was passed for the proper purpose or not, it can hardly be argued that the omission of the mention of the purpose in the order is sufficient to invalidate the order. I now take up the second portion of this argument which is the only contention which has been pressed Detore me by Mr. Mahmud Ali, who appears for the plaintiff. The case of the plaintiff on this point is that as a matter of fact the Punjab Road Transport Board is short of vehicles and at the time when the order of cancellation was passed the Board was not in a position to run its own vehicles on the routes which were rendered vacant by the order. Mr. Mahmud Ali contends that the authority that has been granted to the Provincial Government under section 43 (4) (a) can only authorise the cancellation of permits in a case where the Road Transport Board has not only the intention of running its vehicles immediately on the route the permit for which was cancelled, but is possessed of adequate vehicles for operating on the route in question and there is also no other obstacle in the way of its doing so. He urges that it is not the intention of the Legislature that the route should remain vacant and that the public be deprived altogether of the benefit of transport facilities on that route. It is necessary, before proceeding to examine the argu ment, to refer to the evidence on file which may show the purpose for which the order of cancellation was passed. The plaintiff has produced in evidence Ch. Ghulam Rasul, a Member of the Legislative Assembly, who has stated that in the area covered by the routes in question a Hindu company was running its buses before Partition, that after Partition the Zamindara Transport started running its vehicles in this area but its permits were subsequently cancelled by the Government or the Regional Transport Authority, and that in spite of this cancellation, the Government did not commence plying its own vehicles on these routes. The public having been left without means of transport in this area, he made approaches several times to the Government. The Minister whom he approached told him at first that he would do some thing but later expressed his inability to help in the matter as the Road Transport Board did not possess sufficient vehicles. The Minister suggested to him, however, to persuade some company to run its vehicles on the routes in question. He, along with others, approached the plaintiff and in consequence the plaintiff applied to the Regional Transport Authority for permits and was granted the permits which have been cancelled by the impugned order. In March 1952, questions had been put in the Legislative Assembly as to whether on two of the routes in dispute any buses were being run by the Government since the Zamindara Transport had been taken over by the Govern ment. From the answer by the Minister in charge in the Legislative Assembly it appears that since Janury 1951, buses had not been run over these two routes as the condition of the road did not permit such running. Evidence has also been led to show that the Road Transport Board is not in fact running its vehicles on two of the routes in dispute, i.e., Mandi Bahauddin‑Bherowal via Kuthala Sheikhan and Mandi Bahauddin‑Qadirabad via Kuthala Sheikhan iroutes. On the Phalia‑Qadirabad route it is not denied that they are operating though there is some objection that the services are not very regular. On behalf of the Road Transport Board it. has been urged that they are operating on that part of the first two routes which runs from Mandi Baha‑ud‑din to Kuthala Sheikhan, but it has to be admitted that the Road Transport Board is not plying their vehicles on the two routes as such. The road from Mandi Baha‑ud‑din to Kuthala Sheikhan being part of a longer route, i.e., the Gujrat‑Sargodha route, the mere fact that the Board runs its buses from Mandi Baha‑ud Din to Kuthala Sheikhan is not material for the purpose of determining whether it is operating on the routes in dispute. So the position now is that out of three routes in dispute the Road Transport Board is operating its vehicles only on one route. With respect to the purpose for which the order of the cancellation has been passed there was a good deal of argument as to the party on whom onus lay. Mr. Mahmud Alt urged that as the purpose of the order was not specifically mentioned in the order itself, the onus of proving that the order was passed for the purpose mentioned in section 43 (4) (a) lay on the defendants. On behalf of the defendants it had been urged that it was for the plaintiff who had come to Court challenging the order and on whom onus has been placed by issue No. 1 to show that the order was invalid on any ground of fact. It appeared to me that it would not be a satisfactory decision of the case if I decide the factum of purpose only on the basis of onus. I summoned therefore, the Assistant concerned, from the Secretariat with the relevant file in order to determine the reason why the order was passed. The Assistant appeared before me but only to express his inability to give evidence as the file was not available on account of the One‑Unit set up. 1, therefore, examined the Manager of the Road Transport Board who had in possession the Road Transport Board file relating to this case. From his evidence it has become clear that the Road Transport Board had written to the Government for cancellation of such permits as related to the routes which it calls its monopoly routes. On the 17th of March 1954, the Chairman of the Road Transport, Board wrote the following letter (Exh. CW1/1), to the Punjab Government:‑ "In continuation of this office letter No. 4808‑OSR/54, dated the 13th March 1954, on the above subject, I have the honour to say that Regional Transport Authorities, Rawalpindi and Lahore, have lately issued permits on certain routes in their areas and have since furnished the list thereof to Government. Some of these permits have been issued by the Regional Transport Authorities for the first time on certain routes, over which Punjab Road Transport Board had the monopoly and over others where we were running in competition with private operators. As this is likely to affect the Punjab Road Transport Board services, and will result in unhealthy competition, I request the routes mentioned in the enclosed statement may kindly be declared as vacant by issuing a notification under section 43 of the Motor Vehicles Act, 1939, as amended by section 2 of the Motor Vehicles (Amendment) Act, 1951. Particulars of permits issued have been shown in the remarks column of the statement referred to." The routes in dispute in the present suit were not men tioned in this letter but in the schedule of the subsequent letter (Exh. C. W1/2), and it was on receipt of that letter that the Government cancelled the permits in dispute. From the evidence of the Manager of the Board and the letters placed on record, it is obvious that it was on account of the demand made by the Punjab Road Transport Board that the permits were cancelled and the reason for the demand was that the Road Transport Board wanted to ply its own vehicles over these routes. So the object of the order of cancellation was without doubt the vacation of the routes in order that the Road Transport Board may operate its own vehicles. The attack of Mr. Mahmud Ali on these orders is based only on the alleged inability of the Road Transport Board to put its vehicles immediately on the routes in dispute. Learned counsel says the Road Transport Board knew that it was not in a position to operate its vehicles on the routes in dispute. He says too that some parts of these routes are kacha roads and the Road Transport Board does not ply its vehicles on kacha road unless they be canal banks. A preliminary objection has been taken to this argument on behalf of the learned Attorney General who contends that it is not open to the plaintiff: to urge that the Road Transport Board is not plying its vehicles on the routes in dispute on account of an allegation to the contrary in the plaint. In the plaint it had been alleged that the order of cancellation was void on the ground that the order could have been only in order to enable the Road Transport Board to ply its vehicles on the routes in dispute and the Road Transport Board was already operating its vehicles on those routes. Mr. Mahmud Ali admits that such an allegation has in fact been made in the plaint but says that this was due to a confusion of thought and the allegation is in fact opposed to facts. The confusion arose out of the fact that on that part of the route which runs from Mandi Baha‑ud‑Din to Kuthala Sheikhan the Road Transport Board was running its vehicles. The learned Attorney‑General contends that even if the allegation in the plaint be not correct, he is entitled to urge that no plea which is inconsistent with an allegation in the plaint be allowed as he is being taken unawares and in any case there should first be an amendment of the plaint so that he is allowed to take any further pleas that may be open to him in response to the allegation that the Road Transport Board is not running its vehicles on the routes in dispute. While there is force in the contention of the learned Attorney‑General that a plea which is inconsistent with an allegation in the plaint should not be allowed to be taken, and if it is allowed, there would have to be a re‑opening of the case, I do not intend to base my decision with regard to the argument of Mr. Mahmud Ali on the preliminary objection. I am of the opinion that on the merits the objection of Mr. Mahmud Ali to the validity of the order of cancellation on the ground that it was not passed for the purpose authorised by law has no force. On the record, it has not been estab lished that the Road Transport Board was not in a position to run vehicles on the two routes Mentioned above. From the reply of the Minister to the question in the Legislative Assembly, on which reliance has been placed by the plaintiff, it appears that up to January 1951, the Punjab Transport Board was operating its vehicles on these routes and it was on account of the condition of the roads that such running had been stopped so that it is not a possible argument that there was no prospect of the Road Transport Board plying its vehicles on these routes. I will assume however for a moment, that the Road Transport Board, when it made a request to the Punjab Government to cancel the permits had not vehicles enough to put them immediately on these routes. Even in that case the order of the Provincial Government would not become invalid. Section 43 (4) (a) gives authority to the Provincial Government to pass an order for the purpose of enabling the Road Transport Board to run its vehicles on the routes rendered vacant. When the Legislature gives powers to the executive to pass an order for a particular purpose, then the fact that it has been passed for that purpose is sufficient to validate the order. It is not a necessary condition of validity that the order should in fact be able to serve the purpose for which it is passed. The condition of validity of the order is a subjective one, namely, that the' authority concerned should pass the order with that object in view. If this condition is satisfied, the order is legal even though the Court on examining the facts be of the opinion that the purpose could not have been served by the order. It is for the officer authorised to pass the order and not for the Court to determine whether the purpose will be served by the order. Of course as I have already held in Hadi Ali v. The Government of West Pakistan (P L D 1956 Lah. 824), the officer concerned has to act justly, fairly and reasonably in passing the order and if the order be one which could not have been passed at all by a person so acting, the order would not be valid, but that is a ground neither alleged in the plaint nor argued before me. I am just mentioning this in order that no mistaken impression be created about the grounds on which the validity of an executive order can be impeached. Mr. Mahmud Ali next urged that the number and class of permit is not mentioned in the order and for that reason` too the order of cancellation is void: The notification, it would be observed, mentions the routes and declares that one permit on each of the routes, belonging to the plaintiff: company, has been cancelled. It does not mention the particular serial numbers entered on the permits. The argument may have had some force if there was a real doubt as to the identity of the permits which have been cancelled. The plaintiff holds only one permit on each of the three routes and in fact it has been admitted in the plaint that the three permits, which plaintiff holds for the three routes in dispute, have been cancelled by the said order. Before me it is not alleged that there is any other permit held by the plaintiff company with respect to which there may be some doubt as to whether it has been cancelled by the order or not. I will now deal in brief with the points which though raised in the plaint have not been argued by Mr. Mahmud Ali because I have already determined them in the previous suits to which I have referred. I will, however, consider at some length the points argued by Mr. Faiyaz Ali, Attorney General, in spite of my previous decision. I will take up first the applicability of section 299 of the Government of India Act. There are two points which arise for decision in this connection. The first is whether depri vation is acquisition so that unless compensation is provided no law depriving a person of immovable property, etc., can be enacted. The second is whether by the cancellation of permits a person is deprived of any rights in or over land or of his interest in an industrial or commercial undertaking. In the Amritsar‑Pathankot Transport Company v. The Province of Punjab (P L D 1956 Lah. 900), I held that deprivation is also an included acquisition and that a law that deprives a person of immovable property would not be valid without a provision for compen sation although I dealt with this point very briefly in view of the fact that its decision did not affect the applicability of section 299 in the case before me as I was not dealing with rights in or over land or an interest in an industrial or com mercial undertaking. The learned Attorney‑General contends that deprivation is not included in acquisition, He relies upon the minority judgments in State of West Bengal v. Subodh Gopal Bose and others (A I R 1954 S C 92) and Dwarkadas Shrinivas v. The Sholapur Spinning & Weaving Co. Ltd. and others (AIR 1954 S C 119). In both cases the question before the Supreme Court was of the interpretation of Article 31 of the Indian Constitution the wording of which is similar to that of section 299 of the Government of India Act. The majority held that deprivation amounted to acquisition and was subject to the rule relating to a provision for compensation. The minority took the contrary view. The point is no doubt one of difficulty. To each of the two views that may be taken of section 299 some objection can be taken. If we adopt the minority view the result is that :‑ (1) On the legislature's power of deprivation there remain no fetters at all. It becomes absolute, unlimited and arbitrary. (2) The section would not on this interpretation be proceeding on a principle. The only principle underlying the section can be a guarantee for property rights and there does not appear any ground for distinction between deprivation simpliciter and deprivation with acquisition. Also the section would then be laying down that an acquisition of movable property, whether for public purpose or not, and an acquisition of immovable property or an industrial or commercial undertaking, when not for a public purpose, would not be subject to the payment of compen sation at all. On the other hand, if we accept the majority view then one can say that the section proceeds on a principle and guarantees that property rights are not to be taken away except on payment of compensation. On this interpretation of subsection (2) can be construed as laying down that acquisition of movable property is altogether prohibited and the acquisition of immovable property or a commercial or industrial undertaking is prohibited for any purpose other than public purpose. The main objection to the majority view would be that there are certain cases where a person must be deprived of movable or immovable property and in which no question of compensation arises; and if this view is accepted, all those laws which provide for the destruction of property or for deprivation without compensation would be ultra vires. The learned Attorney‑General mentions cases of destruction of obscene books and destruction of a house to prevent a fire destroying a whole locality. Another objection to the majority view is that it can be adopted only by some straining of language. The section uses two different words acquisition' and 'deprivation' and though acquisition may notes be a term of art, it does imply a transfer to the person who acquires and the two words are not identical in meaning. It has also to be borne in mind that in spite of the similar words in Article 31 of the Constitution of India and section 299 of the Government of India Act the interpretation of these two provisions need not be the same. The Constitution of India purports to guarantee fundamental human rights. But as will appear from the quotations at page 101 of A I R 1954 S C 92, the framers of the Government of India Act had refused to do so. Keeping all this in view I have decided to leave this point to be determined in a case where its determination is essential. In the present case its determination is not necessary, for, as l I have already held in Amritsar‑Pathankot Transport Company v. The Province of Punjab, while there is an element of acquisition in such cases, no right in land or interest in commercial or industrial undertaking is involved (as will appear from the discussion that follows) and, therefore, section 299 does not apply. I say there is an element of acquisition because if the right of the public to ply vehicles on hire on a road be taken away and a monopoly for the plying of vehicles be created in favour of the State, pot only is there a deprivation of the right but the benefit of that right passes to the State so that in effect it is like a transfer of the right. It is not necessary to discuss the question as to whether the rights claimed are rights in or over land at any great length. I have already done so in the Amritsar‑Pathankot Transport Company v. The Province of Punjab, I accept as I did in that case that the public have a right of way in the routes in respect of which permits have been issued and cancelled, but I cannot agree that merely because the right of the public to carry on a particular business is interfered with their right of passage has in any way been curtailed. The State is not preventing the public from passing or even from carrying other persons in motor buses and what is being prevented is a taking of money of the entering into of contracts for carriage of passengers. It would not be difficult to show that merely by forbidding contracts relating to carriage of persons, no rights in or over land are being taken away. We are dealing with persons who have only a right of passage in land, but let us, in order to bring out the point clearly, take a case where the person prevented from carrying passengers is the owner of the land on which persons are to be carried. Suppose by a piece of legislation the owner of a road is prevented from plying his buses on that road for hire. Could it be said that any part of the right of ownership has been acquired or the owner had been deprived of any part of the right of ownership ? The right to enter into a contract for carrying passengers for money is not a part of the right of ownership, though an occasion for the exercise of this right may be provided by the fact that the person concerned is an owner of certain land. If it be accepted that in the case of an owner who is prevented from plying buses on his own road for hire, there is no interference with the rights of ownership, it could not possibly be urged that where a person has only a right of passage in certify land the prohibition of ,plying buses on hire on that land would involve a deprivation of the right of passage. Ownership includes within it all possible the rights in the thing that is owned. Rights vesting in persons other than the owner are only a derogation of the right of the owner, i.e., some of the rights of the owner are taken away and given to other persons, but there can be no right in property which is not a part of the right of owner ship. So if no part of the owner's rights are interfered with, the right of passage is not being interfered with. I may also mention the case of a person who owns a shop but is prevented by law from carrying a particular business in that shop. It could not be said that his rights with respect to the ownership of the shop are being interfered with. The learned Attorney-General has contended in this connection that the, public have no right of way at all in the highways. He has argued that all removable property belongs, by presumption, to the State and so do the highways and what is generally regarded as a right of way is nothing but a licence or permission to use the land as a highway given to the public by the State. There are a number of objections to this argument. It is in the first place too late in the day to say that the public have not a right of passage but only a licence to pass on a highway. A licence is, except in certain cases which are not relevant, always revoc able, so that if the argument of the learned Attorney‑General is to be accepted, the State would always have the power to say to the whole public that any particular highway is closed and the public would have no legal grievance with respect to such closure at all. A right of way and a licence to pass are two entirely different concepts. A licence, even if it be regarded as a right, is a right only as against the person who has granted the license and not against the land itself, but truly speaking it is hardly a right for it is revocable at the will of the grantor at any time. Its effect is merely to render lawful that which is unlawful. In any case, it is just a right in personam available only against‑the grantor, the transferee of the grantor not being as such bound by the licence. On the other hand, the right of way is a right in rem available against the whole world and it runs with the land. It can be described as a right against the land itself for it exists irrespective of the ‑person to whom the land belongs. Even in England, where all land belongs to the Crown and where other persons hold only estates in it, the best of them being an estate in fee simple, the public have a true and real right of passage in the highways. For more than a century we have accepted such a right in pre‑partition India. No particular reason has been put forward why it should be regarded simply as licence. A simple reply to this contention of the Attorney General can be given by a reference to the Motor Vehicles Act itself. Under the Act a permit for plying motor vehicles is granted only in :respect of a 'public, place'. Public place is defined in section 2 (24) as a place to which the public have a 'right of access'. This right of access is inconsistent' with a mere licence revocable at the will of any person. As regards the contention that all land, by presumption, belongs to the State, it has to be pointed out that there is no statute in force now in Pakistan, at least none has been brought to my notice, which recognises the right of the State to all property which is not proved to belong to any person. There are some provisions in certain Provincial Acts by virtue of which it is to be presumed that certain waste lands belong to the Government but those provisions have no applicability in the present case. Nor is there any reason why under the ordinary law of evidence a presumption in; favour of the State should be raised, though in the present case if it were raised it would make no difference for there is no reason to accept a case of licence even if the land belongs to the State. Of course all highways vest in the State as highways. But this vesting empowers the State only to maintain the highway and to regulate the exercise in it of the right of way' of the public, for such regulation is essential where a large number of persons are entitled to exercise a particular right. Another argument put forward by the learned Attorney General is that on account of the fact that .in the Motor Vehices Act. 1939, already there was a provision preventing any person from plying on a highway, except with a licence, it can be said that at the time when the amending Act of 1951 came into force, the right of way of the public had either disappeared so that it arose only from a licence or it existed only in a truncated form. In either of the cases, learned counsel says, there could not be any taking away of a right by the amendment, for all that is done by the amending Act of 1951 is that the cancellation of a licence which was already authorised by the Motor Vehicles Act was authorised on some additional grounds. I have told Mr. Attorney‑General that it is not possible for me to accept that, the right of passage existed in a truncated form on account of the Act of 1939, consistently with the view I take as to whether the right to ply buses on hire is a part of the right of passage. I have held that this is not a part of the right of passage. Therefore, when the Motor Vehicles Act of 1939 made provision that buses were not to be plied for hire without a licence, it took away nothing from the right of the public to pass on the highway. It only interfered with a right of contract or the right to carry on an occupation The right of passage to the public remained, therefore, unaffected. At the same time even if I were to regard the permits as controlling the right of passage, I would not accept that by the permits the right was being limited. The right of passage of the public is already subject to regulation by the State, and the permits would be regarded as being issued by the State in exercise of the right of regulation. I would, therefore, (even if I accept that permits control the right of way) regard the provisions of the original Act of 1939 as being only an exercise of that controlling power which already vests in the State and not an interference with the public right. One of the arguments put forward in the Amritsar Pathankot Transport Company v. The Province of Punjab was that the interest of a person in a commercial undertaking was being taken away because the company was being prevented from carrying on its business on a particular route. I have explained in that judgment that merely because a commercial concern is being prevented by the law from indulging in a particular activity, it would not be correct to state that the interest of a particular person in that concern is being taken away or acquired. A limitation on the activity ties of a commercial 'or industrial undertaking cannot amount to the acquisition of the undertaking or of the interest of a particular person in it. Even if I accept that the right of passage of the public (which was a right in or over land) was interfered with, I would still hold that the case was not covered , by section 299, because we are here concerned with public rights and section 299 cannot cover a case of public rights at all. It provides that either the amount of compensation is to be fixed or the principles for assessment of compensation are to be laid down in the Act. But to whom should the compensation be paid in a case of a public right and how can the amount be fixed ? The right belongs to the whole of the public. There is no measure at all for apportioning compensation and the persons to whom it is to be paid are literally innumerable. It would also be observed that there is a material distinction between public and private rights. Public rights truly belong to the public as such as if the public was a legal entity and a member of the public exercises them only in his capacity as such member. They do not pass to the heirs of a member of the public as ordinary rights do. The son of a member of the public does not inherit them from his father but becomes entitled to them on account of his own status as a member of the public. The next point to consider is whether there has been unwarranted delegation of legislative power, because the Provincial Government has been authorised to frame rules with respect to the Punjab Road Transport Board. The limitations on the delegation of legislative power to the executive are well known. If the policy and framework are provided in an Act by the Legislature and the details are to be filled in by the executive, there is no defect in the delega tion of legislative power. It is only in a case where the, Legislature abdicates or effaces itself that the delegation is` ultra vires. The tendency of modern legislation is to leave more and more to the executive for the process of legislation by the Legislature is cumbersome. The rule‑making power granted by the Motor Vehicles Act does not conflict with the principles of delegation of legislative power. I have fully considered the various points which were raised in this connection in my judgment in the Amritsar‑Pathankot Transport Company v. The Province of Punjab. The objection that there is no Punjab Road Transport Board properly in existence for the benefit of which route permits may be cancelled is also without force, for even without the rules there is a sufficient creation of the Road Transport Board. By an amendment in 1953 which had retrospective effect from 1951, the Road Transport Board was incorporated. Already in the original amendment of 1951 it had been provided that its members are to be appointed by the Central and Provincial Governments. Its function was to ply buses on hire. There was also a provision that 25 10 of the capital was to be allotted to the Central Government. This matter too has been discussed at some length in my previous judgment. I find both issues against the plaintiff: and hold that the order of cancellation of permits is valid in law. The suit is dismissed with costs. A. H. Suit dismissed,