P L D 1961 Supreme Court 452 (PLP)

HAMOODUR RAHMAN, J.‑These three appeals, by leave of this Court, arise out of three writ petitions which were heard analogously by the High Court of East Pakistan and disposed of by one judgment. ' The writ petitions were filed by the appellants herein challenging the validity of a Notification issued by the Commis sioners for the Port of Chittagong on the 14th of March 1955 (published in the Gazette of Pakistan on the 1st of April 1955) and its Corrigendum published in the same Gazette on the 11th of March 1960, purporting to levy charges on cargoes other than jute equivalent to the charges levied on cargoes dealt with over -side at Railway jetties under paragraph 96 of the Jetty Schedule, when these are loaded into or unloaded from ships at the Commissioners' moorings. The appellants sought to have the said Notification and its Corrigendum cancelled and the respondents, the Trustees for the Port of Chittagong, restrained from realizing the said charges. The appellants are all foreign companies carrying on business in the importation, storage and distribution of oil and petroleum products into East Pakistan through the Port of Chittagong where the appellants in Civil Appeals Nos. 11 and 12, namely, The Burmah Oil Company Limited and the Standard Vacuum Oil Company, have their own installations. The appellant in Civil Appeal No. 13 of 1961, the Burmah Shell Oil Storage and Distribution Company Limited, however, carries on its aforesaid business through the appellant in Civil Appeal No. 11 of 1961, the Burmah Oil Company Limited, as its agent and does not itself directly import any oil or petroleum product through Chittagong. The other two appellants have been carrying on the afore said business for a large number of years at Chittagong and for this purpose have taken on lease from the respondents herein and the Province of East Pakistan lands including foreshore lands at Chittagong and have erected thereon permanent jetties, pontoons, office premises, Railway sidings, oil storage tanks and other equip ments, fittings and fixtures essential for loading and unloading of oil and petroleum products from tankers and conveying the same to their own installations. These appellants import such oils and petroleum products in sea‑going vessels which either belong to them or are chartered by them. These vessels on arrival at Chittagong are moored to moorings in front of their jetties and the oil and petroleum products are loaded and un loaded with the aid of pipe‑lines and pumps which are laid on to the jetties belonging to these appellants and thus the oil and other petroleum products are pumped direct from the vessels to the installations which are situated further inland on the leased lands. Prior to 1953 these moorings, which are in fact large buoys tied to a chain attached to a fixture embedded in the bed of the river, also belonged to the appellants but were in that year sold to the respondents for a sum of Rs. 15,

000. The said moorings are utilised for the purpose of securing the tankers and avoiding the necessity of their lying to ships' anchors in the fast flowing tidal reaches of the river Karnaphuly. The appellants claim that they pay rent for the lands leased to them and licence fees for the erection and use of the jetties put up on the foreshore as well as for the privilege of loading and unloading their products through pipe‑lines laid on to the said jetties. They also claim that they pay the prescribed charges for the use of the moorings in accordance with earlier Notifications, as amended from time to time. In addition to these charges, the appellants, it appears, also pay Port dues, pilotage and harbour dues, Master's fees, hire for the fixed moorings and all other dues and charges levied for the use of the Port facilities at Chittagong. The imposition of fresh charges under the impugned Notification and its Corrigendum is, therefore, according to the appellants, wholly illegal, beyond the competence of the Commissioners for the Port of Chittagong and unauthorised by any law empowering the said Commissioners to levy fees and charges within the Port limits of Chittagong. In all these three appeals the respondents are the Trustees for the Port of Chittagong, a statutory body created pursuant to the Chittagong Port Act, 1914, and deriving their powers and authorities from the said Act. The respondents do not dispute the correctness of the facts set out above but contest the claim of the appellants and maintain that the impugned Notification and its Corrigendum were valid and, legal and were made in the proper exercise of their powers. The appellants are, according to them, in every way liable to pay the said charges imposed under the said Notification from the date it came into force. The High Court of East Pakistan upheld the validity of the Notification and the Corrigendum and dismissed the writ petitions. In the case of the appellant in Civil Appeal No. 13 of 1961, it also held that it had no locus standi to maintain the writ application, as no demand for the recovery of the impugned charges had ever been made directly from the said appellant. In these appeals the appellants challenge the impugned Notification and its Corrigendum on the same grounds as were urged on their behalf in the High Court of East Pakistan, namely (1) that after the coming into force of the Government of India Act, 1935, the Trustees for the Port of Chittagong had no power under the Chittagong Port Act of 1914, to levy any charges for the landing and shipping of goods in the Port of Chittagong which was at that time a major Port and legislation in respect thereof could only be made by the Federal Legislature, as major Ports from that day became a subject of legislation enumerated in the Federal Legislative List, item 22; (2) that the impugned Notification of the 14th of March 1955, was wholly illegal and bad, for, it was not a Notification under any provision of the Chittagong Port Act; (3) that the levy of charges for landing and shipping of goods at jetties, wharves or quays not belonging to the Trustees of the Port of Chittagong could not be validly made and was not authorised under the provisions of the Chittagong Port Act, of 1914; (4) that the levy was wholly unreasonable, for, the appellants were already paying all the prescribed charges for the user of facilities provided by the Port authorities, and there was no further facility for which the impugned charge or toll could be levied; (5) that if contrary to the contentions of the appellants it be held that the said charges could be levied by the Trustees for the Port of Chittagong, they could only be levied from the date of the issue of the Corrigendum and not from the date of the original Notification which was on the face of it bad and illegal and (6) that, in any event, the Port authorities had by their conduct waived the realisation of the charges. It may be useful at this stage to set out the impugned Notifica tion its Corrigendum and the relevant provisions of the law under which they purport to have been made:‑ "THE COMMISSIONERS FOR THE PORT OF CHITTAGONG Notification Chittagong the 14th March 1955 Shipping charges at the Moorings outside the Jurisdiction of Chittagong Port (Railway) It is hereby notified for the general information of the public that in exercise of the powers conferred by section 57 (2) (b) of the Chittagong Port Act, 1914 (Bengal Act V of 1914), as amended up to December 1950, and with the previous sanction of the Central Government the Commissioners for the Port of Chittagong will, with effect from the 1st of April 1955, levy on jute a charge of As. 4 (annas four) per bale and on other cargoes the same charges as are levied for the cargoes dealt with over‑side at the Railway Jetties under paragraph 96 of the Jetty Schedule, when these are loaded into and unloaded from the ships at the Port Commissioner's Moorings. The collection of these charges will, be made by the Traffic Department of the General Manager, Chittagong Port (Railway on behalf of the Port Commissioner). (Sd.) M. A. BARY, CHAIRMAN Port Commissioners, Chittagong" "THE COMMISSIONERS FOR THE PORT OF CHITTAGONG Corrigendum to the Commissioners Notification, dated the 14th March 1955, published in the Gazette of Pakistan, Karachi, Friday, 1st April 1955, Part VII. Please read ‑ (1) the heading of the above Notification as "Shipping and Landing charges for handlings done at Commissioners Moorings" in place of "Shipping charges at Moorings outside the jurisdic tion of Chittagong Port (Railway)" and (2) "Section 57 (1) (c) of the Chittagong Port Act, 1914" in place of "Section 57 (2) (b) of the Chittagong Port Act, 1914." CHAIRMAN Port Commissioners, Chittagong." Chittagong Port Act, 1914 "57 (1) The Commissioners shall frame‑ (a) a scale of tolls, dues, rates and charges, annual or other to be paid by the owners of vessels plying, whether for hire or not and whether regularly or occasionally, within or partly within and partly without the limits of the Port, in respect of such vessels and of persons whether in charge of, or on board such vessels, and also in respect of the licencing, registration and regulation of such vessels and persons. Provided that no such tolls, dues, rates and charges shall be chargeable in respect of vessels which are liable to Port dues under the provisions of Schedule I to the Ports Act, 1908. (b) a scale of tolls, dues, rates and charges, (i) for the landing and shipment of goods from and in sea going vessels, and vessels not being sea‑going vessels, respectively at such docks, wharves, quays, stages, jetties and piers as belong to the Commissioners, (ii) for the use of such docks, wharves, quays, stages, jetties and piers by such vessels, (iii) for the storing and keeping of any goods stored in any premises belonging to the Commissioners. . (iv) for the removal of goods, and (v) for the use of any mooring ; (c) a scale of tolls for the use of the said docks, wharves, quays, moorings, stages, jetties and piers by any such vessels in case the Commissioners permit the goods to be landed or shipped by persons other then their own officers and servants ; and (d) a scale of charges for‑ (i) any service to be performed by the Commissioners or their servants in respect of any vessels or goods, (ii) the use of any works or appliances to be provided by the Commissioners, and (iii) for the carrying of passengers and their personal effects On vessels belonging to or hired by the Commissioners. . (2) Such scales shall be submitted to the Central Government and, after approval or modification by the Central Government, shall be published in the official Gazette. (3) Every such scale shall be printed in the English and Bengali languages and characters, and shall be kept hung up in some conspicuous place at the several docks, wharves, quays, stages, jetties, piers, warehouses and sheds". It will be observed from the above that the impugned Notification, as originally issued, purported to have been issued in exercise of powers conferred by section 57 (2) (b) of the Chittagong Port Act, 1914. Unfortunately this was a drafting error, for, subsection (2) of section 57 contained no such clause nor did this subsection deal with any item, of charge at all. It merely provided that the scales of charges etc., when prescribed should be submitted to the Central Government and after approval or modification by the Central Government must be published in the Official Gazette. The digit "2" appearing before clause (b) of subsection (1) of section 57 in the printed copy of the Act had reference, as explained by the High Court of East Pakistan, to a foot note printed under the said section. The latter indicated that clauses (a), (b) and (c) of subsection (1) of the said section had been re‑lettered by the Chittagong Port (Amendment) Act of 1936. Under clause (b) of subsection (1), furthermore, the scale of tolls, dues, rates and charges that could be prescribed in respect of the landing and shipment of goods from and into sea‑going vessels could only be under sub‑clause (i) in respect of such landing and shipment "at such docks, wharves, quays, stages, jetties and piers as belong to the Commissioners." Under this clause a scale of toll, dues, rates and charges for the use of any mooring could only be prescribed under sub‑clause (v) but this, it was contended on behalf of the appellants. could not be in respect of landing or shipment of goods, for, otherwise the word "mooring" would not have been specifically omitted from sub‑clause (1). According to the appellants tolls for the use of moorings could only be levied in cases where the Commissioners had permitted goods to be landed or shipped by persons other than their own officers and servants and that was under clause (c) of subsection (1). It appeals that after protracted correspondence over the validity of the impugned Notification the Commissioners for the Port of Chittagong and the Government ultimately accepted this conten tion and amended the original Notification of the 14th March 1955, by the Corrigendum quoted above. In this the opportunity was also taken of clarifying the heading of the original Notification but the amendment with which we are concerned is that the reference to section 57 (2) (b) in the Notification was amended by substituting in its place section 57 (I) (c). The appellants, of course, contend that even after this amend ment the tort Commissioners are not empowered to levy any tolls from them. Before I take up for consideration the arguments advanced on behalf of the appellants in this behalf, I propose to deal with first objection as to the competence of the respondent to at all prescribe any tolls, charges, etc., under the Chittagong Port Act, after the coming into force of the Government of India Act, 1935. The learned counsel, appearing on behalf of the appellants, sought to contend with considerable vigour that after the enact ment of the Government of India Act, 1935, the powers exercisable under section 57 of the Chittagong Port Act, 1914, by the Port Commissioners ceased to exist altogether by reason of the provisions of section 100 read with Entry No. 22 of List I of the Seventh Schedule to the Act of 1935 and every order or Notification issued in exercise of the powers under section 57 became from that day inoperative, as Chittagong Port had been declared to be a major Port since 1928. Presumably this argument was based on the assumption that the Chittagong Port Act of 1914, was even on this date a Provincial Act and, therefore, persons empowered under such a Provincial Act could not continue to impose or levy any charge in exercise of the powers given by the said Act after the subject‑matter of the legislation had been transferred to the Federal List. Support for this contention was also sought to be called from a decision of the Federal Court of India in the case of Administrator, Lahore Municipality v. Daulat Ram Kapur (A I R 1942 F C 14) where an octroi duty on salt levied by the Municipal Administra tion of Lahore under section 61 (2) of the Punjab Municipal Act, 1911, had been held to be ultra vires. With due respect to the learned counsel, it seems to me that this contention is wholly mis conceived and the authority cited has no manner of application to the facts of the present case. It is clear from the provisions of the Chittagong Port Act itself which was originally enacted with the sanction of the Governor‑General ; under section 5 of the Indian Councils Act, 1892 ; that in 1928, after Chittagong Port was declared to be a major Port under the Ports Act, 1908, the Chittagong Port Act was extensively amended and thereby necessary changes were made to the Act for the transference of the administration of the Port of Chittagong from the local Government to the Governor‑General in Council. After such amendment the Commissioners for the Port of Chittagong became subject to the control of the Governor General in Council under section 95 thereof and the Chairman also was to be a person appointed by the Governor General (vide section 10). As from the date of the said amend ment the scales of tolls, charges, etc to be prescribed under section 57 had also to be submitted to the Governor‑General in Council for his approval. Thereafter, in 1937 after the Govern ment of India Act, 1935, came into force all references to the Governor‑General in Council in the Chittagong Port Act were substituted by references to the Central Government by para graph 4 (1) of the Government of India (Adaptation of Indian Laws) Order, 1937. It is clear, therefore, that ever since 1928 the Commissioners for the Port of Chittagong were authorities appointed by the then Government of India and not by the Provincial Government. Whatever powers or functions they exercised were by virtue of the authority given to them by the 'Governor‑General in Council and under his control and supervi sion. There could be no question, therefore, of any repugnancy arising after the enactment of the Government of India Act, 1935, nor could there be any question of the Chittagong Port Act, 1914, lapsing for, it was within the meaning of section 311 of the Government of India Act an existing Indian Law which was continued in force by section 292 thereof. The case relied upon has no relevance at all, for, there the power, purported to be exercised was under the Municipal Act which never, became an Act of the Central Government, but always continued to be legislation within the field of the Provincial Legislature even after the Government of India Act, 1935, whilst salt was a subject within the exclusive jurisdiction of the Federal Legislature. There can be no manner of doubt, there fore, that the powers of the Commissioners of Chittagong Port to levy tolls, charges, etc., in 1955 continued to exist un -impaired. It will be convenient now to take up the second, third and fourth grounds urged on behalf of the appellants together, for, they are in fact the main grounds of attack against the validity of the levy. The contention that the impugned Notification was not made under any provision of the Chittagong Port Act was advanced on the basis that subsection (2) of section 57 of the Chittagong Port Act (hereinafter referred to as the Act) contained no clause (b) at all. I have already indicated earlier how the said mistake came to be made and it is unnecessary to consider this argument any further since the Port Commissioners have them selves amended the said Notification by the Corrigendum issued on the 11th of March 1960. This brings me to the next argument that even under clause (c) of subsection (1) of section 57 the toll could not be levied upon the cargo landed or shipped by the appellants. It is contended after an exhaustive reference to the provisions of the Act that the scheme of the Act contemplates that the Port Commissioners should provide and maintain a sufficient number of docks, wharves, quays, stages, jetties, piers, warehouses and sheds, employ sufficient servants and appliances and by their own servants land and ship all goods from and in any vessel coming to any such dock, wharf, jetty, etc. (Section 42), and when they had provided such jetties, wharves, etc., then they could compel all vessels using the Port to land and ship such goods there from (Sections 43 and 44). Apart from this the Act also prohibited the erection of private docks, wharves, etc., below the higher water mark except with the permission of the Commissioners (Section 54 and 55). Hence the power to levy tolls, charges, dues, etc., given under section 57 must be read in conjunction with the provisions of the foregoing section of the Act and reading it in this way it was clear that it was not merely by accident but by design that section 57 (1) (b) came to provide that charges for landing and shipment of goods from vessels could only be levied at docks, wharves, jetties, piers, etc., , belonging to the Commissioners and, therefore, the tolls referred to in clause (c) of subsection (1) of section 57 had. necessarily to be read in that light, namely, that the toll under this clause was a toll for the use of the Commissioners' docks, wharves, quays, moorings, stages, jetties, etc., in cases where, for some reason or other, the Commissioners had permitted the goods to be landed or shopped by persons other than' their own officers or servants. It could have no possible reference to goods landed or shipped from private wharves, quays or moorings permitted to be erected by the Commissioners under section 55 of the said Act as had been done in the case of the appellants, for, it is manifest that in the case of goods being landed at or hipped from such private jetties, etc., there would be no occasion for officers and servants of the Commissioners to be employed. There could, as such, it is argued, be no question of levying any tolls in the latter case, for a toll is nothing but a charge for services rendered or facilities provided. In this connection the learned counsel appearing for the appellants placed before us the dictionary meanings of the word `toll' as well as various descriptions of `tolls' given in various text books. It is, however, unnecessary to refer to all of them. As far as it can be gathered, there may be tolls of many kinds, such as harbour tolls, anchorage tolls or even a toll for the use of a Railway system itself. In its generic sense a `toll' may be described as a payment of a. sum of money in respect. of some benefit derived by the payer from the use of some property, service or facility pro vided by another. `Toll' is not, as sought to be contended on behalf of the appellants, synonymous with `hire'. It may well be distinct from, and in' addition to, a charge leviable for the use of that property, service or facility. Thus a `toll' realisable by a railway, may be a payment in respect of the use of the railway system itself as distinct from a charge for carriage, cartage, haulage or collection. Even in the American decision cited by the learned counsel for the appellants Sands v Manistee River Improvement Company (31 Law Ed. U. S. S C R 288), it was observed that tolls are "merely compensation for benefits conferred", which in that case consisted of the facility of floating logs down an improved stream. The right to levy a toll is commonly acquired either by some kind of express grant ‑ or by statute or by long usage ; thus the nature of the right acquired has to be necessarily considered in the light of the terms of the statute or the grant or the usage established and not merely in an abstract sense. In the present case the right is claimed under a statute and it will be appropriate now to consider whether the contention of the appellants' learned counsel finds any support from its provisions. A reference to the provisions of clauses (b) and (c) of sub section (1) of section 57 will indicate that under clause (c) the power given is specific, namely, to prescribe only a scale of "tolls" whilst under clause (b) a general power is given to prescribe a scale of "tolls, dues rates and charges." This, in my view also indi cates that the Legislature itself was making a distinction between a toll simpliciter and a charge and the specific power that was given under clause (c) was to levy a toll as distinct from a charge. The addition of the word "moorings" in clause (c) also strengthens this view, for, it is possible for ships to be moored in mid‑stream and goods to be landed and shipped from them by means of lighters or tenders belonging to the carriers or shippers themselves and not to the Port authorities. The words of clause (c) cannot, therefore, be restricted to cases where goods are landed or shipped at the Commissioners' jetties, piers, stages and wharves only. Clause (c) was, in my opinion, intended to provide also for cases where for some reasons or other the ships could not use or did not use the Commissioners docks, wharves, quays stages, jetties or piers. The use of the moorings alone in such cases would, according to this view, be a sufficient benefit or facility for which the Commissioners would be entitled to levy a toll. The case of the appellants also would be covered by clause (c) for, on their own admission the use of the Commissioners' moorings is necessary, having regard to the fact that the River Karnaphuly, on which Chittagong Port is situated, is a tidal river with swift flowing currents. The plan of the jetties, moorings, etc., filed by the appellants clearly shows that even where a vessel or tanker is using a fixed jetty like the appellants' `L Head' jetty, it is moored fore and‑aft to two moorings of the Port Commissioners. This clearly indicates that but for the use of these moorings the tankers would perhaps not be kept steady to enable the pipe‑lines laid on the jetties to be affixed to the tankers and the pumps to be worked for pumping the oil and petroleum products therefrom to the inland installations at Gupta‑Khali. Thus even the terms of the statute do not indicate that the word `toll' in clause (c) of section 57 (1) has been used in the sense attributed to it by the learned counsel. In the view that I have taken the other contention of the appellants that, since they are already paying hire charges for the moorings, they are not liable to pay any further tolls for the benefit of such moorings must also fail, for, the toll charged is in p addition to, and not in substitution of, the charges that the appellants are already paying. This also disposes of the contention that the toll purported to be levied in the present case was wholly unreasonable and therefore bad. So far as the reasonableness of the charge is concerned, it is significant that even the Solicitors of the appellants in their letter of the 27th of May 1960, annexure E (12), conceded that there was "need for the Commissioners to increase their revenue." This indicates that the reasonableness of the demand was not seriously in dispute, but what really the appellants contended was that in order to justify the demand there must, according to them, be a corresponding service and unless there was such corresponding service no additional charge could be made. The main basis of their contention throughout appears to have been that, since they were already paying for all the services rendered by the Port authorities, there was no justification for any further charge or levy. This, as I have earlier endeavoured to point out, was under a misconception that a toll is a hire for the use of property or a charge for services actually rendered. In this view of the matter the toll was a valid levy made by the Commissioners for the Port of Chittagong under section 57 (1) (c) of the Act for the realisation of a compensation for the benefits derived from the use of the Commissioners' moorings in so far as they facilitated the landing and shipping of the appellants oil and petroleum products even though such landing or shipping was done by the appellants' own officers and servants. The question that next arises is as to from what date the said toll was leviable. The respondents contend that it was leviable from the date mentioned in the original Notification, namely the Ist of April 1955, but the appellants maintain that it could not be levied from any date prior to the 11th of March 1960 when the amendment was in fact made. According to the appellants this amendment effected a substantial change in the original Notification and was in substance the substitutions of a new head of charge therein and was not a mere correction of a technical or accidental error, as contended on behalf of the respondents. The case of the respondents was that the digit "(2)" had been introduced, in the description of the section under which the charge was being levied, by mistake. Assuming that that was so and that clerical or technical mistake could be corrected, the correction possible would have been to substitute the digit "(1)" for the digit "(2)" therein so as to make it read "in exercise of the powers conferred by section 57 (1) (b)". With this correction the Notification would certainly not have been unintelligible, for, under section 57 (1) (b) (v) a charge for the use of moorings could validly have been made and in the absence of any limiting words in the said sub‑clause (v) I see no reason for holding that such a charge for the use of a mooring could not also be in respect of landing o: shipping of goods. Normally, as a rule in construing a statute or a statutory; provision one cannot assume a mistake therein, for, by doing so it would be possible to render many Acts uncertain by putting different constructions on them according to individual conjectures. Mistakes in statutes, therefore, are not to be readily corrected by Courts unless the mistake is of such a nature that the language used in the statute is incapable of having any meaning or would render the statute non‑sensical. Alterations in the statute are, permissible only in order to complete the sense of the statute so as to give it an effectual meaning but this power should not be extended to making substantial alteration in the sense itself, for that would amount to legislating and not merely construing a statute. This principle would apply with greater force to a measure like the present which is in the nature of a taxing pro vision. The substitution of "section 57 (1)(c)" for "section 57 (1)(b)" in the Notification is, in my view, not merely the making good of an accidental omission but, as contended by the appellants, the introduction of a substantial change and a material alteration in the Notification 'itself. I am strengthened in this view for the further reason that in the Notification as published on the 14th of March 1955, the word "toll" is not to be found, but the words "charge" and "charges" have been used. If the original intention was to levy merely a toll, which alone could have been levied under clause (c) of subsection (1), then one would have expected the use of the word "toll" in the Notification itself and not the use of the words "charge" and ` charges". Having regard to the user of the words "charge" and "charges" in the Notification ii seems to me that the only mistake that could have been corrected in the original Notifications an accidental mistake was the sub stitution of the digit "(1)" for the digit "(2)" which would have made the Notification perfectly intelligible. The substitution in fact made by the so‑called Corrigendum of the 11th of March 1960, however, is, in my view, an alteration of the Notification and, therefore, in accordance with the accepted principles of interpretation of statutory rules, orders and notifications, an amendment or change which will take effect only from the date 1 of its promulgation unless it has been expressly or by necessary intendment made to take effect retrospectively. There is nothing. In the Corrigendum from which any such intention can be gathered. Hence I see no reason to depart from the rule that a Notification comes into operation from the date of its publication. in this view of the matter I would uphold the contention of the appellants that the toll under section 57 (1) (c) was leviable only from the date of the publication of the Corrigendum, namely, the 11th of March 1960. It remains now to notice the last contention of the appel lants that the respondents had waived the realization of the toll by reason of the fact that although the toll was purported to be introduced in 1955, no demand was in fact made until the 17th of May 1960. Reference to the correspondence that passes between the appellants and the respondents in this matter clearly negatives this contention. It appears that the respondents con tinued throughout to press for the payment of this toll, and there was no question at any stage of their having given up their right to realise the same. To constitute a waiver there must be some conscious giving up of the right. In the present case, I can find nothing on the record which would give any indication in support of the contention that the respondents were not minded to assert their right to realize the `toll' in question. The argument that if the toll is allowed to be levied now the appellants will not be able to pass the same on to the consumers of petroleum or petroleum products, as they were entitled to do in accordance with their agreement with the Government of Pakistan, has no bearing on this question. The right to pass on the burden to the consumers was not a right which was given by the Port Commissioners to the appellants but was a right which they acquired from the Government of Pakistan and it cannot be utilised as a weapon for defeating the claim of the Port Com missioners. For the reasons given above, I would allow Civil Appeals Nos. 11 and 12 of 1961 to the extent that the respondents will be restrained from levying the toll under section 57 (1) (c) from any date anterior to the 11th of March 1960. There will, however be no order for costs in these appeals. So far as Civil Appeal No. 13 of 1961 is concerned, I would dismiss the same on the ground that the appellant had no locus standi to maintain the writ application in the High Court of East n Pakistan, and as both the writ application in the High Court and. the appeal there-from were wholly misconceived, I would allow costs in this appeal to the respondents. B. Z. KAIKAUS, J.‑I am in entire agreement with my learned brother Hamoodur Rahman in the order that he has proposed and the view of law that he has taken except that my, reasons for the continuance of the powers of the Port Authorities to levy tolls etc., in spite of the change in the Constitution of the country are not the same: The general question that arises in this connection may be put thus. When a Constitution is in force, the Legislatures created by it to which alone is entrusted the task of making laws, con tinue delegating their functions in accordance with constitutional practice, to the executive or the local authorities enabling them to frame rules, bye‑laws, etc., thereby creating, what may be called subordinate Legislatures. When that particular Constitution is abolished and another takes its place by which new legislatures are created and the power of making laws henceforth vests in such new Legislatures alone, a question naturally arises as to whether the power delegated by the previous Legislatures to the subordinate Legislatures still exists. The point may be illustrated thus. Suppose that the power to make rules as to municipal elections is delegated by a provincial Legislature to a Provincial Government. Suppose now that when the Constitution is abolished and by the new Constitution new Legislatures are set up the power to make laws with respect to municipal elections vests only in a new Legislature, that is, the Federal Legislature, and it is provided in the Constitution that it is only the Federal Legislature as will henceforth have authority to make laws in respect of municipal elections. Now if after the coming into force of the new Con stitution the Provincial Government makes rules with respect to Municipal Elections, an objection is 'raised that legislation with respect to Municipal Elections is exclusively within the competence of the new Federal Legislature, and therefore any rule, framed by the Provincial Government is void. What is to be the answer to this question? The power for make laws with respect to Municipal Elections vests solely in the new Federal Legislature and cannot be exercised by any other authority. If the framing of a rule amounts to the making of law with respect to Municipal Elections then this will be inconsistent with the provision which says that henceforth all power to make laws with respect to Municipal Elections vests solely in the new Legislature. Of course, then power rests in the new Legislature it may delegate it to the extent to which such delegation is permitted by Constitutional Law, but after the coming into force of the new Constitution the authority to make laws will be vesting only either in the new Legislature that is created or in a delegatee from the new Legis lature. A delegatee from a previous abolished Legislature has no place at all in the scheme of legislation introduced by the new Constitution. Powers for framing of rules, bye‑laws, etc., which were delegated before the new Constitution came into force are prima facie powers of legislation, and the question will arise with respect to all of them whether they would survive the abolition of the Constitution under which they were delegated. In the present case, the question arises in the following manner. The Port Commissioners were granted power to levy tolls etc. by virtue of section 57 of the Chittagong Port Act, 1914. The Indian Councils Act, 1861; was in force at that time and the Chittagong Port Act was enacted by the Governor of Bengal with the sanction of the Governor‑General. As it makes no difference to cite argument I will assume that the Act was enacted by the Governor‑General himself. By the Government of India Act, 1935, Central Legis lature and some Provincial Legislatures were created and the power of legislation was vested henceforth in those Legislatures alone, subject to some emergency powers in the Governors and the Governor‑General to make ordinances etc. The power to legislate in respect of major ports (Chittagong was declared a major port) was to be exercised by the Central Legislature. The question arises whether the Port Commissioners could continue to impose taxes etc., after the coming into force of the Govern ment of India Act, because this would amount to the making of laws with respect to major ports, a power which vested only in the Central Legislature. On the 23rd March 1956, the Govern ment of India Act, 1935, was repealed and its place was taken by the late Constitution of Pakistan. Article 106 of the Constitution expressly provided that all power to make laws with respect to matters enumerated in the Federal List would vest exclusively in the Parliament. "Major Port" is one of the matters enumerated 'in that List and the question will arise whether even if the power of the Port Commissioners had not been taken away by the Government of India Act it survived the late Constitution of Pakistan. The Continuance of Laws Order of 1958 simply con tinued the laws as they stood in October 1958. There are two Notifications of the Port Commissioners which have beers challenged in these proceedings, the first being of 14th March 1955, and the second of 11th March 1960. We are holding they Notification of 14th March 1955, to be inoperative on other grounds, and are concerned, while considering the present argument, with the existence of power on 11th March 1960. In order that the power of the Port Commissioners to levy taxes may exist on that date it will have to be shown that it will not be affected by Article 106 of the Constitution even if we were to assume that it did exist when the late Constitution came into force. I propose therefore to consider only the effect of Article

106. Article 106 runs :‑ "(1) Notwithstanding anything in the two next succeeding clauses, Parliament shall have exclusive power to make laws with respect to any of the matters enumerated in the Federal List. (2) Notwithstanding anything in clause (3), Parliament, and subject to clause (1) a Provincial Legislature also, shall have power to make laws with respect to any of the matters enumera ted in the concurrent List. (3) Subject to clauses (1) and (2), a Provincial Legislature shall have exclusive power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial List. (4) Parliament shall have power to make laws with respect to matters enumerated in the Provincial List except for a Province or any part thereof." It gives exclusive power to the Parliament to make laws with respect to matters enumerated in the Federal List. Now, when the Port Commissioners levy tolls do they or do they not make laws with respect to major ports? Suppose that what is being done by the Commissioners by a Notification was done by the Parliament by a statute? That would be making law with respect to major ports. Then if the Port Commissioners do it by Notifi cation why should it not be regarded as the making of a law? If it is so regarded, the Notification of the Port Commissioners would be, ultra vires, for the only authority that can make laws with respect to major ports after the 23rd March 1956, is the Parliament. The Constitution put an end to all previous legis lative powers. Of course, the Parliament may delegate this power, but the port Commissioners are not delegatees of any power from the Parliament. It appears to me that the only method of preserving powers like the present is to hold that such subordinate legislation does not amount to the making of laws as contemplated by Article 1061 or similar provisions of a Constitution. If the making of a rule or bye‑law with respect to a subject which is included in the Federal List amounts to the making of law then it would be hit by Article 106, and neither any local authority nor any executive Government to which the power to make such rules, bye‑laws may have been delegated would be empowered to make such rules after Article 106 comes into force and there will have to be fresh delegation of power to them by the Parliament. I am of the opinion that it is possible to hold that the making of laws does not include this; subordinate legislation. The theory of subordinate legislation is that the frame‑work is provided by the Legislature and the details are filled in by the executive or the local authority. We should hold that so far as the making of laws is concerned that takes place the moment the Legislature enacts a statute and that the filling in of details is really relateable to the original making of law. In any case, the meaning of "make laws" as this expression appears in Article 106 of the Constitution or any similar provision is a question of the intention of the Legislature that enacts the Constitution and there is no harm in holding that subordinate legislation was not intended to be referred by the use of these words. Let me point out that the power of these subordinate Legis latures cannot be preserved by ordinary provisions for continuance of laws like Article 224 of the late Constitution. Such provisions continue laws only to the extent that they are not inconsistent with the Constitution. In Article 224 it is provided that it is subject to what is expressly contained in the Constitution. After the coming into force of the Constitution the legislative powers that can be exercised are only those granted by the Constitution. All legislative powers existing preciously many authority stand abolished. Suppose the Central Legislature created by the Government of India Act had been granted power to created Legislature by enacting a law to that effect. Would that law be continued by Article 224? It should be obvious that that law could not be continued and the same result will follow if we hold that subordinate legislation amounts to the making of laws within the meaning of Article 106 of the Constitution. A. H. Order accordingly.