P L D 1953 Lahore 339 (PLP)

KHURSHID ZAMAN, J.‑--The suit out of which this appeal has arisen was instituted by the Pindi Jhelum Valley Transport Company Ltd. against the Punjab Province, the Chairman, the Secretary and the members of the Regional Transport Authority, Rawalpindi for the recovery of Rs. 1,50,000 by way of damages and for a declaration that the 36 stage‑carriage and 31 contract carriage permits held by the plaintiff were valid up to the 27th October 1945 and that the plaintiff was entitled to ply the stage and contract carriages on the Rawalpindi‑Kohala‑Srinagar route with consequential relief in the form of a mandatory injunction to be issued against defendant No. 1 (Punjab Province) requiring it to direct defendants 2 to 6 to formally recognize the validity of the said 67 permits so as to enable the plaintiff Company to ply their 67 vehicles on Rawalpindi Kohala‑Srinagar route and to issue petrol coupons or other authorized permits entitling the plaintiff Company to obtain petrol for their aforementioned transport vehicles "during the continuance of the petrol Rationing Order". The plaintiff further prayed for an injunction against defendants 2 to 6 directing them to recognize the validity of the permits held by the plaintiff Company (with the right of obtaining renewal) and to issue petrol coupons to the Company for the use of its 67 transport vehicles. The circumstances which led to the institution of the suit may be briefly stated asunder. Sometime in 1944, the Punjab Govern ment started a scheme known as the Rationalization Scheme the object of which was to encourage individual vehicle owners to form limited liability companies. Before the introduction for the scheme, 27 persons, who nova form the plaintiff Company, held permits for 36 stage and 31 contract carriages for the Rawalpindi‑Kohala‑Sri.nagar route in their individual capacity. In November 1944, these 27 persons combined themselves into a limited liability company under the name of Pindi‑Jhelum Valley Transport Company Ltd. The formation of the company was approved by the Transport authorities on the 9th December 1944 and on the 14th December 1944, the Provincial Transport Controller, Punjab, recommended to the Examiner of Capital Issues, Finance Department, Government of India, to grant permission to the company to float capital amounting to Rs. 25,00

000. In the meantime, a meeting of the Transport Officers of the Punjab and Kashmir and Jammu State was held in Srinagar to give effect to the Rationalization Scheme. In a subsequent meeting held in Lahore in December 1944, the transport authorities of the two Government decided that only two services from each end should be permitted to run on the Rawalpindi‑Kohala‑Srinagar route. In this meeting, the repre sentatives of the two Companies which plied their motor vehicles on the route were also invited to take part in the discussion, the two Companies being the plaintiff Company and the Pindi Kashmir Transport Company. They were directed to erect suitable workshops, garages and stands it Rawalpindi and Srinagar and to take up the construction of these buildings without any delay, About the end of December 1944 or in the beginning of January 1945; the Punjab Government decided to run their own service on the route in question. On the 6th January 1945, the Provincial Transport Controller, Punjab, wrote a D. O. Letter (printed on page 129) to the Regional Transport Controller, Rawalpindi, informing him of the decision of the Government "to take over the second passenger transport service to Kashmir and also the goods transport concern". The Regional Transport Controller, Rawalpindi, was further directed not to acquire the sarae on the Dalhousie Road for the Pindi Jhelum Valley Transport Company as it may be required by the Government to erect garages and workshops for their own service. The original permits in favour of the 27 persons, who subsequently formed the plaintiff Company, were issued on the 28th October 1940. Under the provisions of section 58 (1) of the Motor Vehicles Act (IV of 1939), a permit issued or renewed within two years of the commencement of the Act was‑effective "without renewal for such period of less than three years as the Provincial Government may prescribe''. The Act came into force on the 1st July, 1939, As the permits in favour of the said 27 persons were issued within two years of the commencement of the Act, the Provincial Government prescribed a period of two years during which they were to remain effective. These permits, therefore, expired on the 27th October 1942. Under section 58 (1) of the Act, a permit other than a temporary permit issued under section 62 remains effective "without renewal for such period, not less than three years and not more than five years, as the Regional Transport Authority may to its discretion specify in the permit". The plaintiff's case is that on the expiry of their permits on the 27th October 1942, they could not be renewed for a period less than three years. But, instead of renewing the permits for the minimum period prescribed by section 58 (1), the Regional Transport Authority, Rawalpindi, renewed them for one year and subsequently for periods less than one year, the last of such renewals expiring on the 31st March 1945. On the 29th March 1945, the plaintiff Company applied for petrol coupons for its 67 motor vehicles for the ensuing quarter. This application was rejected by the Chairman, Regional Transport Authority, Rawalpindi, on the ground that since the Company did not hold any valid permits after the 31st March 1945, the question of issue of petrol to it after that date did not arise (vide memorandum printed on page 143). This refusal on the part of the Regional Transport Authority, Rawalpindi, to issue petrol to the Company naturally resulted in the stoppage of the plaintiff's service on the Rawalprndi‑Kohala‑Srinagar route. The Company made fruitless representations to the Punjab Transport Controller and eventually brought the present suit They alleged in the plaint that the permit which were renewed on the 27th October 1942 were legally valid for a period of three years under section 58 (1) of the Motor Vehicles Act and that, therefore, they were entitled to obtain petrol coupons for the un-expired period of their permits; that the Regional Transport Authority wrongfully renewed their permits for a period shorter than the period prescribed by section 58 (1); that this act of the defendants did not affect the validity of their permits for the statutory period and that the application of the plaintiff Company for the issue of petrol for the next quarter was illegally rejected, in consequence of which they could not ply their vehicles and suffered loss to the extent of Rs. 1,50.000. The plaintiff further challenged the bona fides of the Government and alleged that, in refusing to recognize the validity of their permits for the statutory period, the Government were actuated by improper motives, namely, that they wanted to substitute their own transport service for tire Company's transport service. Only defendants 1, 2 and 3, i.e., the Punjab Government, the Chairman and the Secretary of the Regional Transport Authority, Rawalpindi, contested the suit, the proceedings against other defendants being ex parte. The contesting defendants pleaded that, under the provisions of Ordinance No. XXIII of 1942 and Ordinance No. XXVI of 1944, they were authorised to issue permits for a period shorter than the period prescribed by section 58 (1): that the periods of renewal in the present case were curtailed in the interest of the public; that the plaintiff submitted to short renewals and were, therefore, debarred from challenging the authority of the defendants to issue permits for the periods for which they were issued and that they were also debarred from bringing the suit by failing to take their remedy by way of appeal provided by the Motor Vehicles Act. They further pleaded that section 9, C. P. C. barred the present suit and that no decree for damages could be passed against defendant No. 1 "in the circumstances of the case". Lastly, the defendants denied that the Government or the Regional Transport Authority was moved by any improper motive or malice in not issuing petrol coupons to the plaintiff Company after the 31st March 1945. On the various contentions of the parties the learned Senior Subordinate Judge framed the following issues:‑ "

1. Were not the various permits granted to the plaintiffs valid for a period of three years from the date of their first renewal, by virtue of section 58 of the Motor Vehicles Act without further renewal; and do the Ordinance stated by the defendants make any difference in the matter?

2. What is the effect of the plaintiffs' accepting shorter renewals and applying for further renewals without appealing to tie higher authorities against renewals for periods short of the full terms of three years?

3. Was the act of defendants in refusing to recognize plaintiff's' permits as valid beyond the 31st March 1945, or refusing to issue petrol to the plaintiff malicious or mala fide?

4. If issue No. 3 is decided in plaintiffs' favour, has not this Court jurisdiction to entertain this suit?

5. If issue 3 is decided against the plaintiffs has this Court jurisdiction to try this suit?

6. Are the defendants estopped by their conduct from resisting the plaintiffs' claim in respect of any of their grounds of attack in the plaint?

7. What damages have accrued to the plaintiffs and to what damage are they entitled?

8. Are the plaintiffs entitled to the injunction prayed for.

9. Relief, and against whom "? Issues 1 to 4 and 6 were decided in favour of the plaintiff. Issue No. 5 became redundant in view of the finding on issue No.

3. On issue No. 7, the learned Judge was of the view that under the circumstances of the case, the plaintiff's claim for Rs. 1,50,000 did not appear to be exaggerated. Issue No. 8 was not pressed before him apparently for the reason that the Kashmir State having acceded to the Indian Republic, the injunction, even if granted, would be of no avail. As the liability of the office bearers and members of the Regional Transport Authority, defendants 2 to 6, was not pressed, the learned Senior Subordinate Judge passed a decree for Rs. 1,50.000 with costs in favour of the plaintiff against defendant No. 1, the West Punjab Govern ment, and dismissed the suit against the other defendants. Against this decision of the Senior Subordinate Judge, the Punjab Province preferred the appeal before us. The first contention of the learned Advocate‑General was that the Regional Transport Authority was within its rights to issue permits for periods shorter than the period prescribed by section 58 of the Motor Vehicles Act. In this connection he relied on Ordinance No. XXIII of 1942 and No. XXVI of 1944. The object of these ordinances was to amend certain provisions of the Defence of Indian Act, 1939. Among other amendments, section 3 of Ordinance No. XXIII of 1.943 added clause (6) to section 6 of the Act. The relevant sub‑clause (sub‑clause (b)) reads as follows:‑ "(b) Notwithstanding anything contained in Chapter IV of that Act, but without prejudice to the provisions of section 60, the transport authority which granted a permit may at any time cancel the permit or may suspend it for such period as it thinks fit, if in the opinion of the transport authority it is no longer in the public interest that the service should continue and the vehicle or vehicles covered by the permit can be more usefully employed elsewhere; and the transport authori ty shall cancel or suspend a permit issued by it if so required by the Provincial Government." The learned Advocate‑General argued that in renewing the permits after the expiry on the 27th October 1942, for a period of one year, the Regional Transport Authority acted under this sub‑clause which empowered the Transport Authority which granted the permit "to cancel or suspend it at any time for such period as it thought fit". The period of the permits having expired on the 27th October 1942, no question of cancellation or suspension could possibly arise. The permits had to be renewed and Ordinance No. XXIII of 1942 conferred no power on the Regional Transport Authority or the Government to issue or renew permits for a period shorter than three years. The argument advanced by the learned Advocate‑General is possible only on the assumption that the permits issued on the 28th October 1942, were effective for three years under sec tion 58 (1). It could then be said that the next renewal which was for less than one year was tantamount to cancellation of the permits issued on the 28th October 1942. But there is a complete answer to this contention. Under sub‑clause (b) the Regional Transport Authority could cancel or suspend a permit only if it were of the opinion that it was no longer in the public interest that the service should continue and the vehicle or vehicles covered by the permit could be more usefully employed else where. It has never been the case of the defendants that the permits were cancelled as the vehicles could be more usefully employed elsewhere. Indeed, the Government had openly dec lared that they wanted to run their own service on the route covered by the permits. Faced with this difficulty, the learned Advocate‑General contended that the Regional Transport Authority had acted under the orders of the Provincial Govern ment and that, therefore, the cancellation of the permits need not have been for the reasons for which the Regional Transport Authority could cancel a permit. The last portion of sub‑clause (b) no doubt says that the Transport Authority "shall cancel or suspend a permit issued by it, if so required by the Provincial Government", but, in my opinion, this sub‑clause does not confer arbitrary powers on the Provincial Government to order the cancellation or suspension of permits. The Defence of India Act was an emergency measure and was intended to meet abnormal conditions created by the War. The powers given under the Act were not intended to be exercised by the Govern ment to the prejudice of a subject unless such exercise of powers was necessary for the purposes of the Act. It is, therefore, clear to my mind that the Provincial Government could not cancel or suspend a permit for any purpose which could not be justi fied by the Defence of India Act or the Rules made thereunder. No attempt has been made in this case to explain the emer gency, which necessitated the cancellation of the plaintiff's permits if the renewal of permits could at all be treated as cancellation of the existing permits. The learned Advocate‑General alternatively argued that the Regional Transport Authority was empowered to issue a permit to be effective for any specified period not exceeding five years, by the new sub‑clause (b) which was substituted by Ordinance No. XXVI of 1944 for sub‑clause (b) of Ordinance No. XXIII of 1942. This Ordinance came into force on the 24th June 1944. The relevant portion of the sub‑clause reads as follows:‑ "(b) Notwithstanding anything to the contrary in section 58 or section 62 of the said Act, the proper authority may grant a permit or a temporary permit under the said Chapter to be effective for any specified period not exceeding five years." This contention of the learned Advocate‑General leads us to the question whether the permits which were renewed on the 28th October 1942, were still in force when the Ordinance came into operation, because if they were existing at the time, the Ordinance was not applicable to them as it obviously applied only to new permits and renewals. On their expiry on the 27th October 1942, the permits could be renewed only under sec tion 58 (2) of the Motor Vehicles Act. It is true that sub section (2) does not expressly specify the period for which a permit may be renewed, but it requires that the application for renewal "should be made and disposed of as if it were an application for a permit". This means that the Legislature has made no distinction between issuing and renewing a permit and that the provisions of section 58 (t) as to the period for which a permit' may be issued equally apply to renewals. That the Legislature did not intend to leave the matter of duration of renewed permit entirely to the discretion of the Regional Transport Authority is further made clear by a reference to the proviso to section 58 (1) which provides the same period for a permit which is issue A for the first time and a permit which is renewed. I am, there fore, of the opinion that the permits though renewed for one year were valid for three years under section 58 (2) read with sec tion 58 (1) and were in force at the tine when Ordinance XXVI of 1944 came into operation. They were therefore, not affected by the Ordinance. The next contention of the learned Advocate‑General in connection with this aspect of the case was that the plaintiff Company was estopped from denying the authority of the Regional Transport Authority or the Provincial Government to shorten the period of their permits by accepting them for a period less than the minimum prescribed by section 58 (1), Motor Vehicles Act. This contention, in my opinion, is devoid of force. There can be no estoppel against a statute. Moreover, it is not shown that the Regional Transport Authority or the Government were led into doing something detrimental to their interests by any repre sentation made by the plaintiff Company in relation to this matter The ruling cited by the learned Advocate‑General in support of his contention (A I R 1938 Mad. 227) is clearly distinguishable. It was next contended by the Advocate‑General that the jurisdiction of the Civil Courts to entertain the present suit was impliedly barred under section 9 of the Code of Civil Procedure, He argued that the Motor Vehicles Act was a self‑contained enactment and provided remedies against orders passed under that Act. The provision of these remedies, he argued, impliedly ousted the jurisdiction of the Civil Courts. He referred to certain sections of the Motor Vehicles Act which provide appeals against certain orders made under that Act. Subsection (1) of section 13 deals with orders refusing or revoking licenses and subsection (2) provides an appeal against the order of the licensing authority refusing to grant or renew a licence and also against an order revoking a licence. Section 15 confers power on licensing authority to disqualify certain persons for holding a licence. Subsection (3) of section 15 provides an appeal against an order made by a licensing authority under subsection (1). Subsection (1) of section 16 empowers Regional Transport Authority to declare any person disqualified, for a specified period, for holding or obtaining a licence to drive a public service vehicle in the Province. Subsection (2) says that any person aggrieved by an order of a Regional Transport Authority made under sub section (1) may, within thirty days of the receipt of intimation of such order, appeal against the order to the prescribed authority. Subsection (1) of section 17 confers power on the Court to disqualify a person for holding a licence whom it has convicted of an offence under the Act. Under subsection (7), the Court to which an appeal lies from any conviction of an offence of the nature specified in subsection (1) may set aside or vary any order of disqualification made by the Court, notwithstanding that no appeal lies against the conviction in connection with which such order was made. Subsection (1) of section 35 enacts:‑ "Any owner of a motor vehicle aggrieved by an order of refusal under section 27 to register a motor vehicle or under subsection (1) of section 38 to issue a certificate of fitness or by an order of suspension or cancellation made under section 33 or 34 by an order of cancellation under subsection (3) of section 38 may, within thirty days of the date on which he has received notice of such order, appeal against the order to the prescribed authority." Subsection (2) provides the procedure for the hearing of the appeal. Section 64 provides appeals to the prescribed authority against the order of the Provincial or the Regional Transport Authority refusing to grant a permit and against certain other orders mentioned in clauses (b) to (g). Sections 41 and 68 are the rule‑making sections by which the Provincial Government is authorized to make rules among other things for the conduct and hearing of appeals that may be preferred under this Act. The learned Advocate‑General also pointed out that under section 21 (3) of the Motor Spirit Rationing Order, 1941, remedy is provided by way of revision to Provincial Control Authority against an order refusing petrol. The object of the learned Advocate‑General in referring to, the various sections of the Motor Vehicles Act was to show that the Legislature by providing remedies within the Act to the aggrieved party impliedly ousted the jurisdiction of the Civil Courts. In support of this contention he relied on Sultan Ali v. Nur Hussain (P L R (1949) 215 (F B)=P L D 1949 Lah. 301), Diwan Singh and another v. Fazal Dad and others (A I R 1928 Lah. 562), Bhaishankar Nanabhai v. The Municipal Corporation of Bombay and others (I L R 31 Bom. 604), Raleigh Investment Co. Ltd. v. The Governor‑General in Council (A I R 1947 P C 78). In the Lahore Full Bench case, it was held that where a special tribunal out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. In that case the question to be decided was whether the disobedience of a stay order issued by this Court to the members of the Election Tribunal amounted to contempt of the High Court. By majority of the Judges it was held that the electoral right being a creation of the Constitution Act and the Orders in Council issued there under could only be enforced in the manner prescribed by the statute creating it and is excluded from the cognizance of the Civil Courts. In Diwan Singh and others v. Fazal Dad and others (supra), the facts were that a person whose immovable property had been attached and sold by a Criminal Court in proceedings under sections 87 and 88, Code of Criminal Procedure, brought a suit for the restoration of the property sold on the ground that the procedure laid down for issuing the proclamation and attachment had not been strictly followed. In discussing the question whether such a suit is maintainable in Civil Courts, their Lordships observed; "It is a well‑established principle of law that when an act of legislature gives power to any person for a public purpose from which an individual may receive an injury, then if the mode of redress is also specified in the statute jurisdiction of ordinary Courts will be ousted." It was pointed out that an appeal from an order under section 89 of the Code of Criminal Procedure is provided by that Code and the order of attachment and sale was also revisable by the High Court under section 239 and under its inherent powers. In Bhaishankar Nanabhai v. The Municipal Corporation of Bombay and others (supra), a suit was brought in the High Court by a retiring council lor of the Municipal Corporation of Bombay for a declaration that no councillor was elected at the general election. The suit was dismissed on the ground that the Civil Court had no jurisdiction to entertain the suit as under section 33 of the City of Bombay Municipal Act, 1888, the Chief Judge of the Small Cause Court had jurisdiction to determine the validity of a contested election. The learned Judges emphasized the well‑known proposition of law that where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. In Raleigh Investment Co. Ltd. v. The Governor‑General in Council (supra), an assessee instituted a suit in the High Court of Calcutta claiming, inter alia, a declaration that in so far as explanation 3 and other provisions of the Income‑tax Act purport to authorize the assess ment and charging to tax of a non‑resident in respect of dividends declared or paid outside British India, but not brought into British India, those provisions were ultra vires the legislative powers of the Federal Legislature and that therefore the appellant was not liable to be assessed or charged to tax in respect of the dividends from the sterling companies and than assessment was illegal and wrongful. The suit was dismissed and an appeal from the judgment of the High Court was taken to the Privy Council. Their Lordships in the course of their judgment observed that the Act contains machinery which enables an assessee effectively to raise the question whether or not a parti cular provision of the Act bearing on the assessment made upon him is ultra vires. Jurisdiction to question assessment otherwise than by use of the machinery expressly provided by the Act would appear to be inconsistent with the statutory obligation under section 45 to pay the tax arising by virtue of the Assessment. Their Lordships expressed doubts whether, in view of the machin ery expressly provided by the Act to question assessment, an express provision of section 67 was necessary in order to exclude jurisdiction in a Civil Court to set aside or modify an assessment. Section 67 enacts:‑ "No suit shall be brought in any Civil Court to set aside or modify any assessment made under this Act and no prosecution, suit or other proceeding shall lie against any officer of the Government for anything in good faith done or intended to be done under this Act." On these and other authorities it may now be taken at a settled rule of law that if a statute creates a right and also provides a machinery for enforcing that right the jurisdiction of the Civil Courts is excluded in matters relating to the right created by the statute. At the same time, authority is not lacking in support o the proposition that where the act in question is ultra vires, illegal or mala fide, a suit would lie. Reference may be made to Secretary of State v. Mask & Co. (A I R 1940 P C 105), The Lahore Electric Supply Company Limited, Lahore v. The Province of Punjab (I L R 24 Lah. 617), Tan Bug Taim and others v. Collector of Bombay (A I R 1946 Bom. 216) and Vimlabai Deshpande w/o Purushottam Yeshwant Deshpande v. Emperor (A I R 1945 Nag). It is, however, unnecessary for me to examine these authorities in detail, for I have come to the conclusion, for reasons to be stated presently, that the order by which the plaintiff Company was stopped from plying their vehicles on the Rawalpindi‑Kohala‑Srinagar route emanated from the Punjab Government and not from the Regional Transport Authority. The Act does not provide any appeal against the order of the Government. Mr. Mahmood Ali, who appeared for the respondent Company, pointed out that the prescribed authority for hearing appeal under the Act was the Financial Commissioner, and the learned Advocate‑General was not in a position to deny that at the material time Mr. Hearn as the Additional Financial Commissioner, was entrusted with the work of hearing appeals under the Motor Vehicles Act. Mr. Hearn was not only the Additional Financial Commissioner, Punjab, but was also the Provincial Transport Controller, Secretary Transport Depart ment and Chairman Provincial Transport Authority. It is thus obvious that the decision of the Punjab Government to take over the second service on Rawalpindi‑Kohala‑Srinagar route must have been taken in consultation with and on the advice of Mr. Hearn. Indeed, we find from tile correspondence placed on the record that the orders of the Government on the subject in question were communicated to the Chairman of the Regional Transport Authority by Mr. Hearn as Provincial Transport Controller. I have already referred to his letter dated the 6th of January 1945, by which the Chairman of the Regional Trans port Authority was informed of the decision of the Government. So even if an appeal against the order of the Government had been provided by the Act, it would have been inconsistent with the universal rule of natural justice that no man shall be the judge in his own cause. Mr. Hearn, who was the prescribed authority to hear appeals, was himself directly concerned in the order, the propriety and legality of which is questioned by the plaintiff Company. But this matter need not be pursued, as I have already stated, that the Act does not provide any appeal from an order made by the Punjab‑Government. That the order in question was made by the Punjab Government, is not only clear from the correspondence between the Provincial Transport Controller or his Deputy and the Chairman of the Local Regional Transport Authority, but also from the evidence of Mr. Hearn, who stated that the Government decided to take over the second transport service either in the end of December 1944 or in the beginning of January 1945. Mr. Hearn, no doubt tried to justify this action on the part of the Government but I shall deal with that aspect of the case later. At the present stage, it is sufficient to state that the evidence of Mr. Hearn clearly shows that the order by which the plaintiff Company was compelled io stop their service on the route in question came from the Government. The learned Advocate‑General in fact used this as an argument in support of his contention that the permits in favour of the plaintiff company were legally cancelled under Ordinance XXIII of 1942, although the conditions on which the Regional Transport Authority could cancel the permits did not exist. In this view of the matter, authorities cited by the learned Advocate‑General! do not help him. I would hold that the jurisdiction of the Civil G Court in the present circumstances is neither expressly nor impliedly ousted by the Motor Vehicles Act. Another important point raised by the learned Advocate -General is that the Provincial Government is not liable to be sued either for its oven tortuous acts or for the tortuous acts of their servants. The argument is based on what is sated to be the universal rule of law that a sovereign cannot be sued in his own Courts. In England the King can do no wrong, but even in that country the immunity of the Crown is subject to certain exceptions, redress being provided in such cases by petition of right. No action, however, lies against the King for a tort. But the liability of the Government in this country rests on certain statutes which I shall have the occasion to refer to presently. The cases cited by the learned counsel at the bar in support of their respective contentions on this point .are cases in which the Secretary of State for India in Council was sought to be made liable for the tortuous acts of persons who were in the service of Government of India. It is conceded that the liability of the Provincial Government will be governed by the same consider ations. The leading authority on the point in the Peninsular and Oriental Steam Navigation Company v. The Secretary of State for India ((V Bombay High Court Reports, Appendix A page 1)). In that case the Company instituted a suit against the Secretary of State for India for recovery of damages resulting from injuries to one of their horses in consequence of a negligent act of some workmen employed in a workshop attached to the Government dockyard in. Calcutta harbour. One of the pleas raised on behalf of the defendant was that the action was not maintainable against the Secretary of State for India. In a very learned judgment, Sir Barns Peacock, C. J. pointed out that the liability of the Secretary of State for India in Council depended on the construction of certain statutes. In particular he referred to 3rd and 4th Wm. IV., c. 85, and 21st and 22nd Vict. c.

106. Section 9 of the former Act provides "that from and after the said twenty‑second day of April one thousand eight hundred and thirty‑four, all the bond debt of the said Company in Great Britain, and all the territorial debt of the said Company in India, and all other debts which shall on that day be owing by the said Company, and all sums of money, costs, charges and expenses which after the said twenty‑second day of April one thousand eight hundred and thirty‑four (may become payable by the said Company in respect or by reason of any covenants, contracts, or liabilities then existing, and all debts, expenses, and liabilities whatever which after the same day shall be lawfully contracted and incurred on account of the Government of the said territories, and all payments by this Act directed to be made, shall be charged and chargeable upon the revenues of the said territories ; and that neither any stock or effects which the said Company may hereafter have to their own use, nor the dividend by this Act secured to them, nor the Directors or Proprie tors of the said Company, shall be liable to or chargeable with any of the said debts, payments, or liabilities." Section 65 of 21st and 22nd Vict, c. 106, enacts: "The Secretary of State in Council should and might sue and be sued as a Body Corporate, and that all persons might have and take the same remedies and proceedings, legal and equitable, against the Secretary of State in Council as they could have done against the East India Company, and that the property and effects thereby vested in Her Majesty for the purposes of the Government of India, or acquired for the said purposes, should be subject and liable to the same judgments and executions as they would, while vested in the Company, have been liable to, in respect of debts and liabilities lawfully contracted and incurred by the said Company." The learned Chief Justice held that the combined effect of section 9 of 3rd and 4th Win. IV, c. 85, and section 65 of 21st and 22nd. Vict., c. 106, was that the Secretary of State for India was liable to be sued in cases in which the East India Company would have been so liable, if the latter Act had not been passed. (This position is maintained by section 32 of the Government of India Act, 1919, and section 176 of the Govern ment of India Act, 1935). The learned Chief Justice then proceed ed to consider whether the East India Company would have been liable to be sued in similar circumstances. This question led to the examination of the activities and functions of the East India Company, which, in its inception, was essentially a trading company but had gradually assumed sovereign powers in respect of territories acquired by it. By 3rd and 4th Win. IV, the Company was directed to close down all their commercial activities except those which were necessary for the purposes of government. We, however, find that even after the passing of 3rd and 4th Win. IV, the Company continued to engage themselves in commercial undertakings of a particular type and when by 21st and 22nd Vict., the Government of the territories in possession of the East India Company was transferred to Her Majesty the Queen, the, business activities conducted by the Company were kept up by the Government of India set up by the Act. It is, therefore, a matter of history that before the passing of 3rd and 4th Win. IV, the East India Company performed twofold function. As rulers of the territories, held by them in trust for the Queen, they exercised sovereign powers, viz., made treaties, declared peace and war, annexed territories and seized property of independent neighbours in pursuance of treaties and performed all other acts necessary for the proper government of the country. As traders, they conducted business undertakings. Sir Barns Peacock drew a distinction between the two types of activities conducted by the East India Company and expressed the view that in the conduct of their commercial activities they were subject to the same liabilities as individuals. The reasoning of the learned Chief Justice is to be found in the following passages of his judgment:‑ "Now if the East India Company were allowed, for the purpose of government, to engage in undertakings, such as the Bullock Train and the conveyance of goods and passengers for hire, it was only reasonable that they should do so, subject to the same liabilities as individuals. If, by reason of their having been entrusted with the powers of government, they were exempted from the ordinary liability of individuals in matters of business, exercised either for their own benefit, as it was at one time, or for the purposes of government, as it was at another, private individuals would have had to compete with them upon very disadvantageous terms. A government river steamer engaged in carrying Government opium, or in carrying passengers and goods, for hire, might come into collision with a steamer belonging to an individual or to a private company. Suppose such an accident had occurred in the time of the East India Company, entirely through the negligence of the captain or the crew of the Government steamer, and that the accident had caused the total loss of the private steamer, to gether with a valuable cargo of indigo or silk, the property of individuals, it can scarcely be supposed that it could have been intended that the loss should fall entirely upon the owners of the private steamer and cargo, and that the East India Company should be exempt from liability, where f the Government steamer had been sunk by the negligence of the crew of the private steamer, the owners thereof would have been liable to make good the loss. If such were the law, the East India Company could not have been made liable even to the extent of the profit if any, of the particular voyage of the Government steamer, or to the extent of the value of the steamer itself. Suppose the driver of one of the carts belonging to the Bullock Train should, on a dark night, leave it standing in the middle of the road, or drive it on the wrong side, and in conse quence of his negligence a person travelling along the road should be seriously injured: could it be said that the Government would not be liable, even if it should be proved that the clear profits derived from the Bullock Train on that part of the road, and carried to the account of the revenues, exceeded four lakhs and :a half .in the year ? We may put a case which happened not many years ago. A gentleman returning home on a dark evening was dragged backwards out of the conveyance, in which he was driving himself, by the wire of the Electric Telegraph which crossed the public road, and which hung loosely and so low that he was un able to pass under it; the gentleman was seriously injured, and lamed for life. Could it be said that, if the accident had occurred at the time of the East India Company, they would not have been liable if the accident had been proved to have been caused solely by the negligence of their servants? It was argued that the persons injured have their remedy against those by whose negligence the damage is caused; but what compensation is it in a case in which the damages sustained may amount to several lakhs, to be referred to a lascar or to a bullock‑driver, or even to a captain or mate of a Government steamer, for redress if the accident was caused by his own personal negligence. The captain or mate would not be liable, according to the principle established in the cases of Nickolson v. Mouncey and Stone v. Cartright ((6 Term Rep. 412)). We are of opinion that for accidents like this, if caused by the negligence of servants employed by Government, the East India Company would have been liable, both before and after the 3rd and 4th Win. IV., c. 85, and that the same liability attaches to the Secretary of State in Council, who is liable to be sued for the purpose of obtaining satisfaction out of the revenues of India. We are, of opinion that this is a liability, not only within the words, but also within the spirit, of the 3rd and 4th Win. IV., c. 85, section 9, and of the 21st and 22nd Vict., c. 106, section 65, and that it would be inconsistent with common sense and justice to hold otherwise." Lower down he observes: "But where an act is done, or a contract is entered into, in the exercise of power usually called sovereign powers, by which we mean power which cannot be lawfully exercised except by a sovereign, or private individual delegated by a sovereign to exercise them, no action will lie." Briefly, the conclusions of Sir Barnes Peacock are that before the passing of 21st and 22nd Vict., the company was liable to be sued for the tortuous acts of the persons in their employ, if committed in the conduct of its commercial activities, and that, by virtue of section 65 of that Act, the Secretary of State for India is subject to the same liability. This ruling may now be taken as the last word on the sub ject, their Lordships of the Privy Council having approved of the reasoning of Sir Barnes Peacock in Secretary of State for India v. Moment (I L R 40 Cal. 39). In that case the question to be decided was whether section 41 (b) of Lower Burma Town and Village Lands Act (Burma Act IV of 1898) was ultra vires of the Lieutenant Gover nor of Burma in Council. It enacted: "No Civil Court shall have jurisdiction to determine any claim to any right over land as against the Government." The suit was contested on the ground that it did not lie against the Secretary of State for India in Council. Their Lordships held that such a suit would have lain against the East India Company and was; therefore, com petent against the Secretary of State for India in Council. They proceeded to observe: "The reasons for so holding are fully explained in the judgment of Sir Barnes Peacock in the Penin sular and Oriental Steam Navigation Company v. The Secretary of State for India (supra). The next case to be noticed is Nobin Chunder bev v. The Secretary of State for India (I L R 1 Cal. 11). In that case, the plaintiff, who held a licence for the sale of ganja and charas but was not permitted by the excise authorities to buy and stock the drugs for retail sale, brought a suit against the Secretary of State for India for a declaration that the licence held by him was valid. It was held that the Secretary of State for India was not liable for an act done in the exercise of sovereign powers of the State. This view was dissented from in The Secretary of State for India in Council v. Hari Bhanji (I L R 5 Mad. 273). In that case, the plaintiff brought a suit against the Secretary of State for India to recover certain sums of money which he had been compelled to pay as excise duty. It was urged on behalf of the Secretary of State for India that a sovereign cannot be sued in his own Courts without his consent and that he was not amenable to the jurisdiction of the municipal Courts in respect of acts of State. It was held, that the immunity of the Secretary of State from liability to be sued does not extend to all acts of tort which arise from the exercise of sovereign powers of the Government, but was limited to acts of State properly so‑called. Referring to the distinction drawn in the Peninsular and Oriental Steam Navigation Company v. The Secretary of State for India (supra) between the sovereign acts of Government and their acts done in the conduct of commercial undertakings, the learned Judges observed: "In the conduct of the commercial operations of the Company the occurrence of actionable wrongs could hardly be altogether avoided, and it was obvious that no character of sovereignty attached, to such operations. But the decision in the case of Nobin Chunder Dey (supra) goes beyond the decision to which we have referred. It is apparent that the learned Judges had m view the able judgment in the Peninsular and Oriental Steam Navigation Company v. The Secretary of State (supra) but whereas in that case after noticing the distinction above men tioned, the Court held that exemption from suit could not be claimed in respect of the latter class of acts and expressed no opinion that all acts of the former class would enjoy such immunity, in Nobin Chunder Dey's case it has been ruled that the liability of the Government or of its officers to suit is restricted to acts of the latter class. It appears to us that this position cannot be maintained, and that the decided cases show that in the class of acts which are competent to the Government and not to private person, a distinction taken is between those which lie outside the province of municipal law and those which fall within that law, and that it is of the former only that in this country the municipal Courts in British India cannot take cognizance." According to the view taken by the learned Judges ill this case the immunity of the Secretary of State for India from liability to be sued extends only to such acts which do not profess to be justified by municipal law. Their opinion that the Peninsular and Oriental Steam Navigation Company v. The Secretary of State (supra) is no authority for the proposition that all acts done in the exercise of the sovereign power of the State enjoy immunity finds some support in tile cases cited in that case as illustrations of acts in respect of which the Secretary of State is immune from liability. These cases are: The Nabob of the Carnatic against the East India Company (Bro. Rep. 179, and

2. Vesey, 56), Mountstuari Elphinstone and another v. Heerachund Bedreechund ((Knapp P. C. C. 316)) and Lecaux v. Eden (Douglas Rep. 594). In the first case it was held that a suit cannot be maintained upon a political treaty between a foreign State and the East India Company who were subjects of the Crown acting as an independent State under powers granted by Charter and Acts of Parliament. In the second case it was held that an action would not lie for seizure of property when the proper character of the transaction was that of a hostile seizure, made, if not flagrante, yet nondun' cessante bello. In the third case it was held that an action would not lie against a naval officer for false imprisonment, where the imprisonment was the consequence of taking as prize a ship, which was afterwards restored upon the ground that she was not liable to seizure It will be noticed that all these three cases involved acts which may tae included in the expression "Acts of state", as meaning acts which are not done under the authority or colour of municipal law. The learned Advocate‑General cited a number of authorities in support of the proposition that the Secretary of State for India was not liable for any act done in the exercise of sovereign powers of the Government. They included Nobin Chunder Dey v. The Secretary of State for India (supra), Secretary of State v. Srigobinda Chaudhry (A I R 1932 Cal. 834). Secretary of State v. Ramnath Bhatta (A I R 1934 Cal. 128), The Secretary of State for India in Council through the Collector of Malabar v. A. Cockcraft (27 I C 723) and A. M. Ross v. The Secretary of State for India in Council (I L R 37 Mad. 55). The facts of Nobin Chunder Dey v. The Secretary of State for India (supra) have already been stated and in the view I have taken of the matter, it is unnecessary for me to examine the other cases cited by the learned Advocate‑General in detail. They certainly support the contention of the learned Advocate‑General that the Secretary of State for India was not liable for an act done in the exercise of sovereign powers of the Government. It is, however, unnecessary for me to express any opinion as to whether The Secretary of State for India in Council v. Huri Bhanji (supra) or the cases cited by the learned Advocate‑General lay down the correct law as I am of the opinion that the present case is covered by the rule laid down in the Peninsular and Oriental Steam Navigation Company v. The Secretary of State (supra) which must now be regarded as a ruling of unquestioned authority. After giving my anxious consideration to the matter, I have come to the conclusion that the acts complained of in the present case do not arise out of exercise of sovereign powers of the Provincial Government. It is already pointed out that after the assumption of Government of India by the Crown, the Govern ment of India kept up business undertakings conducted by the East India Company before the passing of 21st and 22nd Vict. Such undertakings included the transport of passengers and goods by rail and road. It is well known that the business of carrying goods and passengers by motor vehicles is one of the commercial activities conducted by the Punjab Government. Soon after the Government had decided to take over the second service on the Rawalpindi‑Kohala‑Srinagar route, orders were issued that the permits of the plaintiff company should not be renewed and within three months of those orders the Government put their own vehicles on that route. The question whether the acts complained of were done in the exercise of sovereign powers of the Govern ment must be answered in the light of these facts. In my opinion, any acts avowedly done in the conduct of a business under‑I taking cannot assume the character of sovereign acts so as to confer immunity on the Government. In this view of the matter, I would hold that the Provincial Government is not immune from liability to be sued. The last contention of the learned Advocate‑General was that the damages awarded by the learned Sub‑Judge were exces sive. In assessing the damages, the learned Sub‑Judge relied on the evidence of Mr. P. S. N. Iyer, a chartered accountant, P.W. 2, and Col. Herbert P. W. 1, who was the General Manager, Punjab Transport Service, Rawalpindi. Mr. Iyer was appointed a Commissioner by the Sub‑Judge to assess the net profits of the plaintiff Company for the months of February and March, 1945. His report, which is printed at page 149 of the paper book, shows that for these two months the net profits of the Company came to Rs. 30,935‑

12. The learned Advocate‑General criticised the evidence of this witness on two grounds; firstly, the witness was ordered to prepare a statement of profits in the presence of both parties but admittedly he prepared the statement without giving any information to the defendants or their counsel; and secondly, the witness has admitted that he is the auditor of the plaintiff Company. If the statement of Mr. Iyer were the only evidence on this point, there would have been considerable force in this criticism. But Mr. Herbert, who, as I have already stated, was the General Manager of the Punjab Transport Service, admitted in his evidence that the total revenue which accrued to the Government from their passenger and goods service on the Rawalpindi‑Kohala‑Srinagar route from the 15th April, 1945 to the 31st August, 1945, was Rs. 7,02,240‑7 and the total expendi ture during the same period was Rs. 4,84,206‑4 leaving a net profit of Rs. 2,18,054‑3 for four and a half months. It was fur ther admitted by this witness that during the winter months the revenue from passenger and goods service is one‑third of that of the summer months. The learned Sub‑Judge also referred to an admission by Mr. Hearn that if the Company had wished to take monetary compensation, he would have given them ex gratia payment of something like a lakh and a half. On this material, it cannot be said that the claim of the plaintiff Company for Rs. 1,50,000 as damages was overstated. I, therefore, see no good reason for interfering with the amount awarded by the Sub‑Judge as damages. A great deal was said by the learned counsel for the respondent Company about the Government acting maliciously in replacing the service of the respondent Company by their own service. According to the learned counsel, the only object of the Government in not allowing the plaintiff Company to run their service for the un-expired period of their permits was to make profits by running their own service on the route in question. `Malice‑in‑fact' or improper motive is not an essential ingredient of the wrongful act of the Government which has led to this litigation. The point was nevertheless stressed in order to show that the Government had no justification for preventing the plaintiff Company from conducting their lawful business for the remaining period of their permits. On the other hand, the position of the Government was that they had to take over the second service on Rawalpindi‑Kohala‑Srinagar route in the interest of the public. It was said that the Company was not faithfully following the instruction given to them to conform to the Nationalization Scheme and conducted their business ineffi ciently. Mr. Hearn, in his evidence, stated that several warnings were given to the plaintiff Company that if they did not carry out his instructions before the end of January, 1945; the Government would be compelled to take over the second service on the route in question. But the witness added that nothing material was done to implement the undertakings given by the Company. One of the complaints of Mr. Hearn was that the plaintiff‑ Company did not build their garages and workshops by the end of January, 1945. It appears from the Extract from the: Minutes of the meeting of the Transport Authorities held on the 9th December, 1944 ("printed at pages 127 and 128), that the representatives of the plaintiff Company were told that if the construction of garages and workshops was not started by the 1st January, 1945, their permits would be cancelled. Mr. King, who was the chairman of the Regional Transport Authority, Rawalpindi, is reported to have said that it was not easy to procure cement and building material, and therefore, some latitude should be given. It is to be borne in mind that before starting the construction of garages and workshops the Company had to acquire a suitable site for the same. The minutes show that Mr. King expressed his willingness to requisition land for the con struction of garages by the two Companies, provided the Com panies undertook to compensate the present lessees. Some time in the middle of January, Mr. M.Z. Alam, Officer on Special Duty visited Rawalpindi and he was shown some initial construction of garages, etc., on a site which had been approved by this officer for the Murree Hills Transport Company, but he found no signs of any construction on the site which had been approved for the plaintiff Company. It appears that before the Government decided to take over the second service, arrangements were being made for requisitioning the site which was approved by the Trans port Authority for the plaintiff Company. On the 6th January, 1945, the Punjab Transport Controller informed the Regional Transport Controller, Rawalpindi, that the Government had decided to take over the second passenger transport service to Kashmir and, therefore, the sarae on Dalhousie Road, which the Pindi‑Jehlum Valley Transport Company were thinking of acquir ing should not be acquired for them as it may be required by Government to erect their own garages and workshops. It is, therefore, not surprising that on the 15th January, 1945, Mr. Alam did not find any construction raised on the site which the Com pany was thinking of acquiring through the Company of the Regional Transport Authority who was also the Commissioner of Rawalpindi Division. After considering all the relevant facts, I am of opinion that it was not humanly possible for the plaintiff Company to acquire land and build garages and workshops within the unreasonably short time allowed to them by the Punjab Transport Controller. The complaint of the plaintiff Company that impossible conditions were imposed on them in order to drive them out of the field of competition is, in my opinion, not altogether unfounded. So far as the charge of in efficiency is concerned, no specific instances have been placed on the record, and on the material before me it is not possible to say that the service of the Company was any worse than the services of many other Companies who conducted the business of transport of passengers and goods during the years immediate ly following the second Great War. For the reasons stated above, I would dismiss this appeal with costs. KAYANI, J.‑--I agree with the conclusions reached by my brother, but propose dealing separately with two questions, one of which has been raised for the first time in appeal. This is the vexed question of the liability of the late Secretary of State for India whom the Punjab Province of Pakistan, defendant No. 1 in this case, has succeeded, a question which, notwithstanding the forensic charm with which it is invested, is in my mind associated with a sense of irresponsibility. For as often as damage arises to a private person through the negligence, incompetence or vicious ness of a Government servant, as often is the Government advised to resort to inequity, disclaim responsibility and foster incompetence. In England, the King could do no harm until 1947, when the Crown Proceedings Act admitted his human attributes. Here in Pakistan, our governments have never enjoyed that measure of immunity, and their liabilities have been determined by section 176 of the Government of India Act of 1935, by which they can be sued as though they had succeeded the Secretary of State, and, passing back through the various Acts for the governance of India to 1833, we are all agreed that the liability of the Secretary of State was coterminous with that of the East India Company, that is to say, the Secretary of State may sue and be sued, and the same remedies shall be available against him as were available against the East India Company. (21 and 22 Victoria, Chapter 106, section 65). This language is unfortunate, and one cannot help feeling that section 176 of the present Act could have been made more determinate, so as to state unequivocally the acts in respect of which the Government can be sued and those in respect of which it cannot be sued. As it is, we have to go back to the East India Company and its liabilities to the subject, and for that purpose I can do no better than to follow tradition and rely on the judg ment of Sir Burnes Peacock in P. & O. Steam Navigation Co. v. Secretary of State (5 Bombay High Court Reports, Appendix I (1861)) which has received the approval of the Privy Council. In determining whether the East India Company would be liable, Peacock C. I. observed that the principle of English law that the King cannot be guilty of personal negligence or misconduct was not applicable, and he agreed with Chief Justice Grey in the Bank of Bengal v. The East India Company (supra) that the Company being invested with sovereign power was not the same thing as being invested with sovereignty. This was inferable from the recital in 53 Geo. III, Ch. 155, by which the territories in the possession of the East India Company were vested in the Company for a further term, without prejudice to the undoubted sovereignty of the Crown. The facts of that case were that while a servant of the P. & O. Steam Navigation Co. was proceeding in a carriage drawn by two horses belonging to the Company, certain workmen in Government employ, carrying a piece of iron funnel casing from the workshop to the steamer; dropped it on the road out of fear as they wrongly thought they were being overtaken by the horses, and damaged one of the horses. The Company brought a suit against the Government, claiming Rs. 350 as damages. It was understood that the liability of the Government was the same as that of its predecessors, the East India Company. Holding that the East India Co. was not a sovereign although in vested with sovereign powers, the learned Chief Justice proceeded to note that for the purposes of government the Company were allowed to engage in commercial undertakings and observed that it was only reasonable to allow them to do so subject to the same liabilities as individuals. "It was argued that the persons injured have their remedy against those by whose negligence the damage is caused; but what compensation is it in a case in which the damages sustained may amount to several laths, to be referred to a lascar or to a bullock‑driver, or even to the captain or mate of a Government steamer, for redress, if the accident was caused by his own personal negligence? ..We are of opinion that for accidents like this, if caused by the negligence of servants employed by Government, the East India Co. would have been liable ......... and drat it would be inconsistent with common sense and justice to hold otherwise." As regards the sovereign powers of the Company, it was observed that there is a great and clear distinc tion between acts done in the exercise of what are usually termed sovereign powers and act done in the conduct of undertakings which might be carried on by private individuals without Having such power, delegated to them .... But where arc act is done or a contract is entered into, in the exercise of powers usually called sovereign powers; by which we mean powers which cannot be lawfully exercised except by a sovereign, or private individual delegated by a sovereign to exercise them, no action will lie." As an example of the exercise of sovereign, power, the Chief Justice referred to the Nabob of Carnatic v. adze East India Co. (supra), where the Nawab sued tire Company on the basis of a treaty entered into between the parties. It was held that since the treaty was as between two neighbouring independent state, it was not the subject of private municipal jurisdiction. Another instance was the act of a naval officer in seizing the property of a subject as prize; on the supposition that it was the property of an enemy. On the other hand, the act of an officer in navigating a river steamer or in repairing it, would not be in the exercise of sovereign powers, although it was an act which the Company were authorised to do by 3 and 4 Will. IV, Ch.

85. In this particular case, emphasis appears to have been laid on the commercial activities of the company as distinct from its sovereign functions, but although the two functions were mutually exclusive, A does not seem to have been the intention to treat them as exhaustive. Would any powers given to the company by statute, it not commercial in character, be unnecessarily sovereign? if Yes, it would have been useless to define sovereign powers as "powers which cannot be lawfully exercised except by a sovereign or private individual delegated try a sovereign to exercise them. For if such were the power' contemplated by Sir Barnes Peacock; another way of defining them would have been to call them "powers conferred by a statute, which are of a non‑commercial character; and that definition would not have been serviceable in England where they were not dealing with an artificial entity like the East India Company, invested with sovereign powers but nevertheless not a sovereign. In England, the thought of commercial activities never entered into one's contemplation of sovereignty. Conse quently, this definition leaves room for holding, and in a manner suggests, that there might be another class of activity, neither sovereign nor commercial, on which a state might embark, so that its conduct is regulated by statute. The beneficent activities of a government, I suggest, fat; into this class. To call the act of an inspector who seizes short weights or measures a sovereign act or an act of state would be ridiculous; it is foreign to the accepted conception of sovereignty. In Moore's Act of State in English Law (quoted in Oma Parshad v. Secretary of State (1937 Lah. 572), an act of state is "an act of high power standing out side, of and above not only the ordinary judicial but also the executive regime" .. "an act of a higher nature referring to the King's supreme and imperial power of sovereignty which ought not to be disputed or handled in vulgar argument" . . . . an act which, I confess, bears no resemblance to the inspector's seizure of short weights and measures. It would not be far wrong to say that an act of state or a sovereign act is above the law, and if that be so, why should the state fetter itself by making such act the subject‑matter of any law? I said that Sir Baines Peacock's view was approved by the Privy Council. This approval is contained in Secretary of Stare v. Moment ((1912) 40 Cal. 391) and the extent thereof must be measured by the facts of that case. The respondent, Moment, was the owner of a house in Rangoon Cantonment, standing on land belonging to the Government, who sued for possession of the land on payment of compensation for the building. The suit was dismissed on the ground that jurisdiction of the Civil Court was barred under section 41 of the Lower Burma Town and Village Lands Act (1896). Thereupon the Government issued a notice under the Act, calling upon the respondent to yield possession within three months. The respondent, in reply, filed a suit for damages, which the Government, in its turn, resisted on the ground that section 41 excluded the jurisdiction of the Civil Court. It was argued that section 41 was ultra vices, and the argu ment took the following turn. The act in question had been made in pursuance of powers given to the Governor‑General by section 22 of the Indian Councils Act, 1861, but not such as to repeal or affect any provisions of the various Government of India Acts, including that of 1858, and as under section 65 of the Act of 1858 the Secretary of State could be sued in respect of remedies available against the East India Company, and section 41 of the Burma Act had the effect of nullifying that provision, it was beyond the Governor. General's legislative power. The Privy Council said: "The proceedings out of which the appeal arises related to an ordinary dispute about the title to land, in the course of which there emerged a claim to damages for wrongful interference with the plaintiff's property .. . . . their Lordships are satisfied that a suit of this character would have lain against the company. The reasons for so holding are fully explained in the judgment of Sir Barnes Peacock, C. J., in the P. and O. Steam Company v. The Secretary of State for India (supra), and the only question is whether it was competent to the Government of India to take away the existing right to sue in a Civil Court. The answer was in the negative, but that doe, not interest us. The respondent, Moment, in the suit that he filed questioned the right of Government to eject him without compensation The Government had issued a notice of dispossession under a certain Act, and if the Privy Council had looked upon the order of ejectment as a sovereign act, it should have held that a suit did not lie in respect of such an act. By holding that a suit was competent, it impliedly over‑ruled the plea that this was a sovereign act. Their Lordships in fact called it "an ordinary dispute about the title to land" leading to a claim for damages. The judgment of the Privy Council laid at rest the doubt expressed in cases like Tobin v. The Queen (33 L J C P 199) and Mclnerni, v. Secretary of State (38 Cal. 797) whether Sir Barnes Peacock was right in holding that the Secretary of State could be sued in respect of a tort even in the case of business undertakings. Nobin Chundar Dey v. The Secretary of State (supra) had no such doubt, but it restricted the applicability of the P. and O. Steam Navigation Company's case to commercial undertakings. The facts in Nobin Chunder Dey were that the plaintiff had pur chased from Government by auction the right of retail vend of liquor and drugs and bad deposited money, but after he had laid in a stock of goods, the excise officer refused him passes and compelled him to close his shops. Having sustained loss on account of re‑sale of goods, he claimed compensation, or at least refund of the money deposited by him. It was held, however, that the, matter involved was "not in any degree an undertaking that might be carried on by private individuals without sovereign powers" . . . . within the meaning of the P. and O. case. . . . . and that the contract was only part of the adminis trative arrangement by which Government collected excise duty. . an act which could not be done lawfully by private persons without delegated powers and which was, therefore, done in exercise of sovereign power. This case was pointedly dissented from by three Judges of the Madras Court . . . . one on the original side and two in appeal . . . in the Secretary of State v. Hari Bhanji (supra), where the Government had appealed expressly to obtain the opinion of a Division Bench in view of the conflict of the original judgment with the opinion of the Calcutta Court in Nobin Chunder Dey (supra). This was a suit for the recovery of overpayment of excise duty on salt, resulting directly from the application of a Central Act governing imports, and it was held that the acts of State of which the principal courts of British India were debarred from taking cognizant, are acts done in the exercise of sovereign powers which do not profess to be justified by municipal law. But when an act professes to be done under the sanction of municipal law, the fact that it is done by the sovereign power, and is not an act which could possibly be done by a private individual, does nor oust the jurisdiction of the municipal court. It was observed that the maintenance of proceedings against the sovereign was governed by two principles, "the one having relation to the personal status of the defendant, the other to the character of the act in respect of which relief is sought" As regards the first, while it was true shat a sovereign could be sued in his own Courts only with his consent . . . in England by a petition of right . . . . . the East India Co. was not a sovereign enjoying such exemption, and reliance was placed on the F. and O. case, The Bank of Bengal v. The East India Co. (supra) and the Nabob of Carnatic v. The East India Co. (supra). As regards the second, municipal courts could not entertain claims arising out of "acts of State", but what is an act of State? In cases of the P. and O. class, where the act was committed in the conduct of undertakings which might be carried on by private persons, "it was not necessary to do more than to call attention to the general distinction between acts done in the exercise of powers usually termed sovereign and acts done in the conduct of undertakings which might be carried on by persons who enjoyed no delegated powers of sovereignty." Sir Barnes Peacock held that exemption could not be claimed in respect of the latter class, but expressed no opinion that all acts of the former class enjoyed such immunity. Nobia Chunder Dey (supra), however, while purporting to rely on the P. arid O. case, went further and held that liability of the Government was restricted to the latter class of cases: The correct view should be that in the class of acts which are competent to Government and not to any private person, a distinction is to be drawn between those which lie outside the province of municipal law and those which fall within that law, and that it is of the former only that municipal courts in this country cannot take cognizance. Such, for instance (said the judges in Hari bhanji's case) are the acts of making peace and war or of concluding treaties, illustrated by the Tanjore Case (7 M I A 476), The Nabob of Carnatic v. East India Co. (4 Brown's Chancery Cases) Rustomjee v. The Queen (L R 2 Q B D 69), Forester v. The Secretary of State (I A 1872‑3, page 55). In the Tanjore case on the death of Raja Sivaji, who enjoyed sovereign status, the East India Co. seized both his state and private property as an escheat to the permanent power. On a suit for recovery by the eldest widow, the Privy Council pro ceeded to inquire what was the real character of the act one: whether it was a "seizure lay arbitrary power on behalf of the Crown of Great Britain, of the dominions and property of a neighbouring State, an act not affecting to justify itself on grounds of municipal law", or whether it was "in whole or in part a possession taken by the Crown, under colour of legal title, of the property of the late Raja of Tanjore in trust for those who by law might be entitled to it on the death of the last possessor." If the latter, the plea that it was an act of state had no foundation. Having come to the conclusion on evidence that it was a case of the former kind, their Lordships held that there was absence of jurisdiction in the Court. It is to be noted that the judgment did not proceed on the ground that the injury resulted from an act which could only be done by sovereign power, but on the ground that the act was such as did not fall within municipal law. In the Nabob of Carnatic v. East India Co. (supra), a treaty was entered into with the East India Company, "not as subjects but as a neighbouring independent state, and is the same as if it were entered into between two sovereigns: it consequently is not the subject of private municipal jurisdiction." In Rustomjee v. The Queen (supra), the petitioner had a demand on a British Colony in China as British subject. War broke out between England and China and the colony was abolished. At the close of war, a treaty provided the payment of three million dollars to the Queen in respect of debts due by the colony to British subjects. The petitioner, however sought to compel the Crown to satisfy his demand in: Court, A Judge of the Queen's Bench observed‑‑‑and was confirmed in appeal‑‑"I do not think it can possibly be said that when the Queen has, as a high act of state, made a treaty and received money in consequence of an act of state, the mode of distributing it is in any way enforceable by a Court of law or subject to a finding of juries. I think there is a moral claim that it be given to the right persons, which must be investigated in the manner in which Her Majesty is pleased to direct, and the Ministers who direct it would probably be responsible in Parliament if they did it unjustly, In Forester v. The Secretary of State (supra), the plaintiff claimed through Begum Sumroo who, at the time when the East India Co. acquired the Doab, held a jagir subject to maintaining troop for the sovereign. On her death, the company resumed the jagir and seized the military stores. The plaintiff sued to recover the estate and compensation for seizure of arms. The plea of the Crown that a suit did not lie because the Begum was a sovereign and the resumption and seizure were acts of state was over ruled by the Privy Council after finding that she was not a sovereign, Their Lordships relied on the Tanjore case and observed; The act of Government was not the seizure by arbitrary power of territories which upto that time had belonged to another sovereign state: it was the resumption of land previously held from the Government under a particular tenure, upon the alleged determina tion of that tenure. The possession was taken under colour of a legal title, that title being the undoubted right of the sovereign power to resume or retain or assess to the public revenue all lends within its territories upon the determination of the tenure under which they may have been exceptionally held rent‑free. If by means of the continuance ref that tenure or for other cause, a right be claimed in derogation of the title of the Government that claim like any other arising between the Government and its subject would prima facie be cognizable by the municipal Courts of India." Now since the resumption of the estate was an act which could under no circumstances have been done by a private individual, and since it was an act of Government done in the exercise of administrative powers, it the principle laid down by Nobin Chunder Dey had been correct, the Privy Council should have been prepared to call the resumption and seizure an act of State. Nobin Chander Dey, therefore, directly opposes the view of the Privy Council in the Tanjore rose and in Forester's case. Shivabhajan v. Secretary of State ((1904) 28 Bom. 314) was one of the cases relied upon for the Government, but it belongs to the class of cases where the question is whether the liability is that of the mater or servant. In that case, a chief constable (an officer below an Inspector of Police) had seized bay which was alleged to have been stolen. The charge having failed the hay was partly restored to the accused, but some of it was lost, and the accused brought a suit for compensation against the Secretary of State on the ground of negligence of the Chief Constable to take adequate security from the Sipurdar. In holding that the employer was not liable where the duty performed was imposed by law and not by the will of the employer, the learned Judges referred to Rogers v. Rajendar Dutt ((1860) 8 Moor's I A 103) where damages were claimed against an officer of the East India Company for a wrongful act, and, repelling the plea that he had acted on behalf of and with the sanction of Government, the Privy Council observed: If the act which he did was in itself wrongful against the plaintiffs, and produced damage to them they must nave !be same remedy by action against the doer, whether the act was his own spontaneous and unauthorised, or whether it were done by the order of the superior power. The civil irresponsibility of the supreme power for tortuous acts could not be maintained with any show of justice, at its agents were not personally responsible for them; in such cases the Government is morally bound to indemnify its agents and it is hard on such agent when this obligation is not satisfied but the right to compensation in the party injured is paramount to this consideration". On the reasoning employed by the learned Judges of the Bombay Court‑that the employer was not liable where the duty performed was imposed by law‑it can be fairly argued that if tile chief constable had not seized the goods under the law, his employer, the Government, would have been liable. On the reasoning adopted by the Privy Council‑that the civil irresponsibi lity of the supreme power for tortuous acts could not be maintained with any show of justice if its agents were not personally responsible for them‑it may safely be said that if the chief constable had not been personally responsible, the supreme power would have been responsible. In neither case, however, was it argued that the Secretary of State would not, in any event, be responsible because what the chief constable did was art act of State, a sovereign act that no private individual could do without delegated authority. A. M. Ross v. Secretary of State ((1914) 37 Mad. 55). This is a case which I am citing because it was decided on tore original side by Chief Justice Wallis, and was referred to by him in Secretary of State v. Cockcraft (supra), Ross had sued the Secretary of State for the closing down by the District Magistrate of a labour depot in connection with the recruitment of coolies for the Assam tea gardens. The order was ultra vires, but it was not found to be an act done in connection with any private undertaking or any mercantile concern of Government Examining the liability of the Secretary of State, the learned Chief Justice pointed out that Nobin Chunder Dev had gone too far in laying down that no suit would lie against Government except in connection with a private undertaking, pointing out that even in England a petition of right gave a remedy not only for breach of contract, but also in cases of detention of land, chattels or money of the subject by Government. The question here was, however, the liability of the Secretary of State for acts of public servants (not being acts of State, in cases within the jurisdiction of Courts, and he held that the Secretary of State was not liable for the misfeasance etc. of his agents, (Story on Agency) since that would involve him in endless embarrassments and losses which would be subversive of the public interest. In Secretary of State v. Cockcraft ((1916) 39 Mad. 351) the suit was against the Secretary of State for damages for injuries sustained in a carriage accident caused by the careless stacking of gravel by a contractor on a military road maintained by the Public Works Department. It was contended that no cause of action was disclosed against the Secretary of State, and reliance was placed on the P. and O. case, Chief Justice Wallis referred to his decision in Ross's case and observed that although the P. and O. case only decides that the East India Company was liable for the negligent acts of its servants when such acts were done in the conduct by the company of undertaking which might have been carried on by private individuals without any delegation of sovereign power, it was also authority for the view that in respect of acts done by it in exercise of its sovereign powers, it could not have been made liable for the negligence of its servants in the course of their employment. The question here was whether the acts complained of can be said to have been done in the conduct by the Government of undertakings which might have been carried on by private persons. The answer, the learned Chief Justice thought, should be in the negative, as in his opinion the provision and maintenance of roads is one of the functions of Government though in India it was largely delegated by statute to municipalities and local boards. Seshagiri Ayyer, J. wrote a more detailed judgment, but came to the same conclusion. As examination of case law, however, compelled him to the conclusion that even in regard to the exercise of sovereign functions, immunity was subject to certain exception. He named three exceptions, based on three rulings. Actually, these ought to be treated as cases in which the act complained of was not held to be in the exercise of sovereign power. The 'exceptions" were these: ((1843) 2 Marley Digest, 307) An action for trespass could be against the East India Co. Dhukiec Dadajee v. The East India Co. (1). (2) "If the state, by its legislature, prescribes the limits or conditions under which executive acts are to be performed, a liability may arise for transgressing those limits or conditions", Secretary of State v. Hari Bhanji (sipra). This is only a mild way of presenting Hari Bhanji's case, and presenting it as an exception. It only says Oat the state may of it own consent circumscribe its sovereignty. What Hari Bhanji's case actually says is that the acts of state of which the municipal courts should not take cognizance are acts done in the exercise of sovereign powers which fall out of the municipal law. That is to say, merely because an act is done by the sovereign power, and it is act which cannot be done by a private person, does not make it a sovereign act, if it is done in pursuance of the municipal law. (3) If a state has benefited by the wrongful act of its servant, it is liable to be sued for the restitution of profits unlawfully made. The Bank o` Bengal v. The United Company ((1831) Bignell, 87). It would thus appear by implication that both Wallis, C.J. (who had already expressed himself in A. M. Ross v. The Secretary of State (supra) and Seshagiri Ayyer, J. accepted the view propounded in the Secretary of State v. Hari Bhanji (supra). The only distinc tion they drew was that the laying of roads was a governmental or sovereign function, though Seshagiri Ayyer J. realised that if a municipal (or, I may add, any other) Act provided for the laying of roads, the act of laying will lose its sovereign attribute. It was over looked that even for the purpose of making roads the Government has often to acquire land and that the proceedings in acquisition are governed by the Land Acquisition Act. The position then would be that until the land is acquired, any act by an officer of Government on the same plot would be devoid of the equality of sovereignty, but that the moment the acquisition was complete, anything done in connection with the building of the road would be a sovereign act, This would be an anomalous, perhaps a ridiculous situation Secretary of State v. Shreegobind Chaudhry ((1932) 59 Cal. 1289) was more or less a similar case. The plaintiff, being a disqualified proprietor? under the Court of Wards Act, 1879, whose estate had been released, filed a suit against the Secretary of State for damages caused by the misfeasance and negligence of the manager appointed by the Court of Wards, The Act provided for the liability of a manager to account to the Court of Wards, even after he had ceased to be manager, for any loss occasioned to the property by wilful default or gross negligence. It was held that the scheme of dealing with minors, females and persons of unsound mind, as regards their estates, is a part of the arrangement for the collection of land revenue, that the jurisdiction exercised by the Court of Ward; was an exercise of power essentially sovereign being in the public interest and the interest of revenue and that, therefore, there was no question of a contract with the Government or of the Government detaining the property of the plaintiff. What is desired is that the manager should be made to account. (one way of doing it is by moving the Court of Wards to take action under the Act. But there is no principle upon which a suit for further relief can be maintained against the Secretary of State. It was not necessary to say whether or not a suit would lie against the manager, having regard to the particular provisions of the Act. The learned Chief Justice (Rankin C. J.) thought, however, that be would be slow to hold that it would not, but in any case there was no ground to charge the tax‑payer. Now although among the cases examined by the learned Chief Justice were those of Hari Bhanji and A. M. Ross; and nothing was said in disapproval of either, expressly or by implica tion, the principle laid down by them‑that a sovereign act was not an act for which the Municipal law provided was overlooked; for the appointment of a manager by the Court of Wards took place in pursuance of a provision of law and the proper finding would have been to hold that the Secretary of State was not liable, not because the act complained of was sovereign, but because Government was not responsible for the acts of its agent where the agent's duty was imposed by law. More recently, in Oma Parshad v. Secretary of State (supra) where the Government had been sued for compensation by the owner of stolen property recovered from the thief but lost in the malkhana, and the act by which the officers of Government had been in possession of it was pleaded in defence as an act of State, a Division Bench of this Court held that as the liability arose under the Municipal law, the defence that the act was an act of State could not be invoked, though the defence that the master was not liable for the unauthorised act of his servant was plausible. For R proper appreciation of the terms "act of state," the learned Judges (Addison and Din Muhammad) relied on Moors Act of State in English Law, Forester's case, Khursaidi Begum v. Secretary of State (1926 Pat. 321) and Municipal Corporation Bombay v. Secretary of State (1934 Bom. 277), among others. In the last‑mentioned case it was observed that: "An act of state is a term which is not applicable to an action of the sovereign towards its own subjects in its territory in time of peace. The expression is usually applied to an action of the sovereign towards foreign subjects, whether it be in time of war or in time of peace. There can be an act of State as between the sovereign and its own subject in time of war. It would, however, be a misnomer to call the administrative acts of a sovereign against its own subjects in time of peace as acts of state and to claim immunity in respect of them, although they may amount to a contract in the ordinary sense between the sovereign and his subjects." The act complained of in the present case is the decision of Government to substitute its own transport service for the plaintiff company, and, with that end in view, to refuse the renewal of its permits beyond the 31st March 1945. That decision was conveyed to the Chairman of the Regional Transport Authority at Rawalpindi by Mr Hearn, Provincial Transport Controller, on the 6th January 1945 (see page 129 of the paper book line 39), and in pursu ance thereof the Deputy Transport Controller asked the Chairman on the 24th February 1945 to inform the plaintiffs that their permits will not be renewed beyond the date in question (page 134). Consequently, the act complained of is that of the Govern ment and not of any officer of Government. Further, it is not in exercise of any sovereign power because the refusal to renew the permits professes to be justified under the Motor Vehicles Act and the Ordinances of 1942 and 1944. I now pass to the second question, namely, whether the civil Court has jurisdiction in matters relating to the Motor Vehicles Act. To decide that question, it is necessary to obtain a‑birds‑eye view of the general scheme and substance of the act and to notice particularly is provisions regarding transport vehicles. The Act consists of ten chapters, the first being introductory and the last dealing with miscellaneous matters. The second chapter deals with the licensing of drivers, the third with the registration of motor vehicles, the fourth with the control of transport vehicles, the fifth with the construction, equipment and maintenance of motor vehicles, the sixth with the control of traffic, the seventh with vehicles leaving or visiting Pakistan temporarily, the eighth with insurance of vehicles against third parties and the ninth with offences, penalties and procedure. It is evident that we are mainly concerned here with Chapter IV, though I shall briefly notice certain provisions of Chapters II and III also. Section 3 requires that no person shall drive a motor vehicle in a public place with out possessing a driving licence, and under section 7, a licence must be granted if the applicant passes certain tests to the satis faction of the licensing authority and (in the case of a paid employee) does not suffer from certain diseases or disabilities. Section 13 provides for appeal against an order refusing the grant of a license. This is Chapter II, so far as relevant. In Chapter, III, section 22 requires compulsory registration of every motor vehicle in accordance with the provisions of that Chapter. Section 27 gives the circumstances in which registration may be refused‑when, for instance, the vehicle is mechanically defective or fails to comply with provisions of Chapter V and section 35 provides for appeal to the prescribed authority against an order refusing registration. Under section 36, registration must be refused to a transport vehicle unless application is accompanied by a prescribed form stating the greatest laden weight and greatest axle weights for which the vehicle is and the several axles are designed. Then comes Chapter IV Section 44 thereof provides for the constitution of a Provincial Transport Authority for the whole Province and of several Regional Transport Authorities for the various parts, the former to guide and co‑ordinate the activities of the latter. Under section 42, a transport vehicle shall not be used save in accordance with the conditions of a permit granted by one of these authorities, "authorising the use of the vehicle in that place in the manner in which the vehicle is being used". Under section 43, the Provincial Government may, after hearing the representatives of the interests affected, (i) prohibit or restrict the conveyance of long distance goods traffic by private or public carriers, or (ii) fix maximum and minimum fares or freights for stage carriages or public carriers, having regard to the advantages offered to the public, trade and industry by the development of road transport, and the desirability of co‑ordinating road and rail transport, of preventing deterioration of the road system and of preventing uneconomic competition among motor vehicles. The principles governing the grant or refusal of a stage carriage permit and of a public carrier's permit, with both of which we are concerned her are almost identical, and are laid down in sections 47 and 55 respectively. In coming to a decision on these matters, the registering authority is required to have regard to (a) the interest of the public generally; (b) the particular advantage offered by a proposed service; (c) the adequacy of the existing services and the effect on them of the service proposed; (d) the benefit to any particular locality; and (e) the condition of the roads included in the proposed route. In addition to the above, in the case of stage carriages consideration should also be given to the operation by the applicant of other transport services, particularly of unremunerative in conjunction with remunerative services. Under section 48, a Regional Transport Authority may, after considering the above matters, (a) limit the number of stage carriages on a specified route, (b) issue a permit in respect of a particular carriage or service, (c) regulate timings or (d) attach to a permit any prescribed conditions relating to the running of the service. Similarly, under section 66, the same authority may, after a consideration of the matters set forth in section 56 (a) limit the number of public carrier's permits or (b) attach to the permits conditions (i) that the vehicle shall be used on specified routes, (ii) that the weight shall not exceed a specified maximum, (iii) that certain records should be maintained; or attach any other prescribed condition appropriate to the service. Section 59 lays down certain general conditions relating to all permits, such as their non‑transferability, the maintenance of vehicles in compliance with Chapter V, limitations as to speed, weight, rates of fares and freights and hours of work for drivers and provision as to insurance. Section 60 provides for cancella tion and suspension of permits on breach of conditions. Finally, section 64 provides for appeal against an order refusing to grant a permit or cancelling or suspending a permit, among other things. During the course of arguments, a notification (No. 6335 H. G. 41/55655, dated the 31st October 1941) was produced showing that the appellate authority was the Additional Financial Com missioner, and it is agreed that during the relevant period it was Mr. Hearn himself who occupied that post. Now although there is no express provision in the Act which bars the jurisdiction of the civil Court, it must be clear that the duties for the discharge of which the two Transport Authorities were created must be performed by those authorities and by no other person. It would not, for instance, be for the civil Ai Court to decide whether a driver possesses the qualification requisite for the grant of a license, or whether a vehicle was mechanically defective or whether a permit should be granted or refused. At the same time, the Act seems to take it for granted that, given, certain conditions, licenses will be granted and permits to use transport vehicles will be issued. The object. of controlling everything connected with the use of vehicles is to make their use conducive to public convenience, preventing likewise injurious competition between various servants and with the railway system. Mr. Mahmood Ali pointed out that the only power of restricting the number of services was given by sections 4 3, and that it was given in a very qualified manner. Firstly, is provided for the prohibition or restriction only of long‑distance goods traffic; secondly it provided for the fixation of fares and freights. It is clear, however, that although there is no power to suspend a passenger service, there is power to suspend a public carrier. So also there is power, under section 48 and 56, to limit the number of stage carriages or vehicles carrying goods, and a transport Authority can no doubt exercise this power with the effect of eliminating an entire service, such as the plaintiff's provided its decision is influenced by the consideration indicated in sections 47 and

55. In certain circumstances to be mentioned hereinafter‑‑‑the civil Court may be called upon to determine whether those considerations prevailed and whether the Authority has acted in good faith, but undoubtedly the Act did not intend the civil Court to decide that because those conditions were fulfilled, a permit should be granted or a service allowed to function. That is not the function of the Court but of the Transport Authorities and it would impair their utility if there were any such interference with their working. It is not, however, the claim of the plaintiffs that the Civil Court can do any such thing for them. What they complain of is that the Government acted maliciously in substituting their own service for that of the plaintiffs, that by calling upon the plaintiffs to form themselves into a company the Government had held out to than a fair prospect of the renewal of their permits, and that "ostensibly purporting to act under the Act" they had abused their powers and had thus brought about loss to the plaintiffs. Regarding the permits themselves their position was that the original permits were valid for three years under section 58 and that, consequently, on the date of the refusal to issue petrol there existed valid permits which, if they were not cancelled, ought to have been operative. This involves the interpretation of section 58, a matter in respect of which the Court can certainly give a declaration: for if the Transport Authority refuses to issue petrol in the belief that no valid permit exists, though it does exist according to a proper interpretation of section 58, then in making a refusal the Authority exceed the power which the Act gives it and the Court will in that case step in to prevent or remedy the excess. The further prayer, however, to compel the Authority to recognize the plaintiffs' right obtain renewal of permits is, again, related to the jurisdiction of the Authority and its acceptance will, in my opinion, constitute an encroach must on that jurisdiction) Mr. Mahmood Ali contended that tire basis of his claim was unjustified interference by Government with the plaintiffs' business, that there was nothing in the Act to compel them to form into a company, that nevertheless they did form into a company, but that even if they did not, that was not a good reason for refusing them permits. And if by that refusal the plaintiffs, incurred a loss and became entitled to damages, what remedy did the Act provide for them? He could appeal to the Financial Commissioner, but not for any damages. Further, Mr. Hearn being himself the appellate authority and the decision being that of the Government, how could Mr. Hearn hear the appeal? Further still, assuming that he could hear it, Mr. Hearn being himself the author of the plaintiffs' destruction, could he be expected to change his mind in that capacity? Was the appellate authority in these circumstances constituted in conformity with the fundamental principles of judicial procedure? The Privy Council observed in Secretary of State v. Mask & Co. (supra) that "it is settled law that the exclusion of the jurisdic tion of the civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure." That was a case under the Sea Customs Act and the Assistant Collector of Customs had rejected the plaintiff's claim that certain goods should have been assessed as raw betel‑nuts subject to duty ad valorem and not as boiled betel‑nuts subject to duty on a tariff value. The Act provided for an appeal to the Collector (section 188) and a revision to the Governor‑General (section 191) and subject to the order in revision the order in appeal was to be final. Both the appeal and the revision had been rejected. The Privy Council held, after making the general observation reproduced above, that in this particular case, "by sections 188 and 191 a precise and self‑con tained code of appeal is provided in regard to obligations which are created by the statute itself, and it enables the appeal to be carried to the supreme head of the executive Government", that the jurisdiction of the civil Court was excluded by the order in appeal and that there was no allegation that the provisions of the Act bad not been complied with or the Assistant Collector had not acted in accordance with the fundamental principles of judicial procedure. Nor bad any such thing in fact happened. Their Lordships further observed that the determination of the question whether the jurisdiction of the civil Courts was barred "must rest on the terms of the particular statute which is under consideration and decision on other statutory provisions are not of material assistance, except in so far as general principles of construction are laid down. They referred with approval, for the purposes of the case before them, to the following passage in the judgment of Willes J. in 6 C. B. (N S) 336; "Where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it ............ With respect to that class it has always been held that the party must adopt the form of remedy given by the statute." In the Trustees for the Improvement of Calcutta v. Chandra Kanta Ghosh (56 Ind. Cases 32) the respondent had brought a suit for a declaration that the appellant had no power under the provisions of a Road Improvement Scheme, framed under the Calcutta Improvement Act of 1911, to acquire certain land owned by him. Under section 39, whenever the Trustees ware of opinion that for the pur pose of creating new or improving existing means of communica tion and facilities for traffic, it is expedient to lay out new streets or to alter existing streets, they may pass a resolution to that effect and shall then proceed to frame a street scheme for such area as they may think fit. Under section 78, after land has been properly included in a scheme, owners may apply to the Trustees requesting that the acquisition of their land should be abandoned in consideration of the payment of a sum to be fixed by the Trustees. It was argued for the respondent that lands had been included in the scheme not because they were wanted for the purposes of the Act, but with the object of exacting an exemption fee. The Privy Council observed that if this were correct, the Trustees would have acted ultra vires and the respondent would have been entitled to succeed, since the act of the Trustees would have constituted a misuse of the powers conferred upon them, even if it could be proved that by means of such exemption fees funds would be obtained to ease the burden of the expendi ture to be incurred in the execution of the scheme. On facts, however, their Lordships were of the opinion that the Act had not been contravened, as although the respondent's land was not actually required under section 41 for the widening of the road, it could be acquired under section 42 since it was "affected" by the execution of the scheme within the meaning of that section‑by reason of enhancement of its value. In Lahore Electric Supply Co. v. Province of Punjab (1943 Lah. 41) a Full Bench set aside an order of the Provincial Government under the Defence of India Act requisitioning the petitioner company's property when, on facts it was satisfied that the order was not made "for maintaining supplies and services essential to the life of the community", but in order to defeat the plaintiff's suit which was then pending, notwithstanding that section 16 provided that " no order made in exercise of any power conferred by or under this Act shall be called in question in any Court." Relying on the observation already quoted from Secretary of State v. Mask & Co. (supra) and other notable cases, Young, C. J. declared that "this Court can interfere if it is satisfied either that the order under Rule 75‑A is ultra vires or that the order was not made bona fide but for some collateral object." Muhammad Munir. J. said he would set aside the order on the short ground that the Lahore Electric Supply Co. was not property" within the meaning of Rule 75‑A, but an undertaking for which no provision was made by way of requisitioning. Section 16 of the Defence of India Act was commented upon by the Privy Council also in Emperor v. Vimlabai Deshpande (1946 P C123) where the question was whether before arresting the respondent under Rule 129 the police officer "reasonably" suspected him to have acted in a manner prejudicial to public safety. Their Lordships held that the use of the word "reasonably" bound the police officer to prove to the satisfaction of the Court that he had reasonable grounds of suspicion, and that as regards the exclusion of jurisdiction of the Court by section 16, "if the orders made by the police or the Provincial Government were invalid, they were made in exercise of a power conferred by the Act." Some of these and numerous other cases were reviewed by a Full Bench of this Court in Sultan Ali v. Nur Hussain (1949 P L R 2 Lah. 215) on which the learned Advocate‑General strongly relied. In that case one of the parties before an Election Petition Commission, aggriev ed by an order of the Commission refusing to adjourn the pro ceeding to enable him to examine two witnesses, brought a suit for a declaration that the order in question was without jurisdiction, arbitrary and contrary to law and justice. Muhammad Munir, Acting Chief Justice (with whom Khurshid Zaman, J.) agreed, being of the view that the Commission was not a Court subordinate to the High Court and that it was an independent tribunal exercising exclusive jurisdiction in a defined class of cases, held that a suit was not competent in these circumstances. Cornelius, J. dissented. The majority view rested on the considera tion that the electoral right was created by the Constitution Act and the Orders in Council which contained a complete Code in regard to the manner in which a person may acquire and exercise that right and the remedies available to him in exercise of that right. It, therefore, falls within that class of rights which being a creation of the statute can only be enforced in the manner prescribed by the statute creating them. It was admitted however, that it was for the civil Court alone to determine the question whether a special tribunal has acted within jurisdiction or exceeded its limits, whether it has acted in an unauthorised manner in the exercise of its jurisdiction or even whether it was properly constituted. I think section 9 of the Code of Civil Procedure is the best guide in this matter. A Civil Court has jurisdiction in all suits of a civil nature, unless its jurisdiction is either expressly or barred. There is no express bar in the Motor Vehicles Act, but by implication, since it has created certain liabilities, in respect of these we must look for redress in the Act itself. If I therefore, the Transport Authority refuses to grant a permit, the remedy should be sought in an appeal to the Financial Commis sioner. But if the order of refusal, in whatever form it is clothed, emanates from an authority which is superior to the Financial Commissioner, then the provisions of the Act have not been complied with, and the Civil Court can give a declaration to that effect. And if, as in this case, the appellate authority happens to be the very person on whose advice the Government has acted in determining the life of the plaintiffs' company, there, is no effective provision for an appeal and there is again a failure to comply with the provisions of the Act Secretary of state v. Mask & Co. (supra). Further, if ire the refusal the grant permits, considerations others than those enumerated in sections 47 and 35 are found to have prevailed, there would be a misuse of powers and the act of Authority would be ultra vires, [Trustees for the Improvement of Calcutta Corporation v, Chandra Kanta Ghosh (supra)]. Lastly, since the Act does not provide for damages arising out of tort, the Civil Court will have power to go into that matter. There are, consequently, more reasons than one in favour of the competency of the present suit. A. H. Appeal dismissed.