P L D 1961 (W (PLP)

QADEERUDDIN AHMED, J.‑The petitioner, Saleh Muhammad is a clearing agent or `muccadam' authorised under bye‑law 46‑A, framed under section 56 of the Karachi Port Trust Act. 1886, to take delivery‑of cargo on behalf of the owners of cargo and to transact business in that connection. He holds a licence in the form of Appendix ` F' to the bye‑laws for this purpose. The relevant part of the licence is as follows :‑ "Name . . . . is hereby licensed to take delivery of cargo from the Karachi Port Trust within their premises with effect from . . ."

2. The petitioner has brought this writ petition .to get the amendment of bye‑law 15‑A, made under the Karachi Port Trust Act, 1886 by the Board of Trustees vide its Resolution No. 259 dated the 3rd of August, 1959, quashed, and for mandamus against the Traffic Manager of the Port Trust and all officers and employees of the Board to restrain them from levying or recovering charges from him under the amendment for entering the premises of the Trust.

3. The facts are that the Board has amended bye‑law No. 15‑A so as to be able to recover certain amounts from those who wish to enter the Karachi Port area. Originally the bye law was as follows: ‑ "The wharves, quays, sheds, jetties, piers, landing places, tramways, stages, warehouses and other works in and adjoining the same shall be in the charge of the Traffic Manager who shall direct and manage all operations therein connected with the landing and shipment of goods and the storage .of the same whether in sheds or in the open and shall exculde improper characters, idlers and persons having no business within the said area and take whatever steps he may consider necessary for the proper maintenance of order within the said places or portions thereof." The following paragraph has been added to it by the amendment :‑ "And for the safe and convenient use of such wharves, quays, sheds,' jetties, piers, landing places, tramways, stages, warehouses and other works in and adjoining the same, entry thereto shall only be permitted by a pass or token to be ob tained from the permit office of the Karachi Port Trust on payment of a fee as follows :‑ . Permanent Photo Pass .. Rs. 5 per pass per head per annum. Day Pass ..... Rs. 1 per head per day. Labour Tokens .. Re. 1 per token per head per annum. Lost passes to be replaced Scheduled charges as above. Lost Tokens to be replaced .. Rs. 5 per token. Note :‑

1. The following shall be exempted from the above charges :‑ (1) Trustees of the Port. (2) Port Trust staff. (3) Government servants having regular business in the Port Area excluding contract labour. (4) Ships crews. (5) Bona fide passengers of ships in Port. (6) Heads of Diplomatic Missions accredited to Pakistan." The effect of the amendment is that the petitioner, whose business is to take delivery of cargo from the area of the Port and for which he holds a licence, cannot enter the premises without paying for this purpose, nor can his labourers enter the premises to handle the cargo without making such payment. He has, therefore, challenged the validity of the amendment by this petition and his counsel has advanced the following arguments in support of it: (1) The petitioner holds a licence to take delivery of cargo from the Port area and has paid for the licence. His exclusion from the premises with the ostensible object of regulating entry into the premises is inconsistent with the licence and unreasonable. (2) Cargo is stored and kept by the Board in its godowns and the owners have to pay for it. Moreover the Board is bound on receiving payment and after compliance with certain formalities to deliver the cargo to its owner or his agent, but neither the owner nor his agent can take delivery of the goods in virtue of the amendment without paying to enter the pre mises. This amounts to extorting money by creating a situa tion to compel the petitioner to pay for it. (3) The original bye‑law is applicable to "improper characters, idlers and persons having no business within" the premises for the purpose of "the proper maintenance of order within the said places or portions thereof". Clearing agents or muccadams do not fall within these categories of persons and, therefore, the amendment is inconsistent with the declared object for which the charges are imposed. (4) The passes and tokens, which are to be issued under the amendment, have no relation to the object of excluding improper characters from the premises because mere payment of money at the rates stated in the amendment can have no effect on the character of those to whom permission is granted to enter the premises. Such payment is either inconsistent with the declared object of the passes and tokens or at least irrele vant to it. (5) The Board is entitled to levy tolls, dues, rates and charges in terms of sections 43 and 43‑A of the Karachi Port Trust Act, 1886, only, but the charges imposed by the amendment do not fall within these sections. (6) The bye‑law is ultra vires both by reasons of being outside the provisions of sections 43 and 43‑A of the Act and by reason of being unreasonable. (7) The amendment ought to have been brought into force with the previous approval of the Government and by its publication‑in the Official Gazette, under section 57 of the Act, but this procedure has not been followed.

4. Mr. Fazlur Rehman appearing for the Traffic Manager has contended in reply that the petitioner is entitled to act for the owners of cargo in virtue of the licence granted to him, but is not entitled by this reason alone to enter the premises of the Port because his status, in this respect, is no better than that of his principals and, therefore, he can be made to pay the same charges which are recoverable from his principals. Moreover, the Board has the authority under clauses (b), (c), (d) and (f) of section 56 of the Act to make bye‑laws for safe and convenient use of the premises of the Port ; to regulate the recep tion or removal of cargo within and from those premises ; to settle the mode of payment of tolls, charges, dues and rates, levied under section 43 of the Act and generally to carry out the purposes of the Act. These powers of the Board are of a different character from its duty to deliver cargo and, therefore, it can make arrangements in exercise of these powers and give delivery of cargo subject to the arrangements made in their exercise. It is immaterial in this view that the petitioner has to pay money once for obtaining a licence to carry on his trade of a clearing agent and again for entering the premises. Two payments for two different purposes make a sound proposition. The Board is in need of money, as stated by the Traffic Manager in paragraph 8 of his counter‑affidavit, "to defray the expenses incurred in regulating the entry of persons entering the Port or necessitated for the protection of the valuable cargo of various persons stored therein", but there is no extortion .of money because there is ample legitimate power enjoyed by it to raise funds under section 43 read with clause (d) of section 56 of the Act. It is important to notice that these provisions are wide and do not make it necessary that the object for which money may be raised should be stated in the bye‑law. If the original bye‑law states the object of the passes and tokens to be excluding improper characters, idlers, and persons having no business in the premises, and the amendment is not consistent with the object, then the necessary conclusion is not that there is no good object of the amendment, but the more understandable conclusion is that the object of the amendment has not been correctly stated. The inconsistency, therefore, between the original bye‑law and the amendment is of no consequence. Counsel conceded that charges could be levied by the Board under sections 43 and 43‑A of the Act only; but argued that the charges fixed for issuing passes to permit entry on the premises of the Port could be imposed because, under clause (a) of section 43 of the Act, tolls, dues, rates and charges could be levied "for the use of such wharves, quays, stages, jetties and piers and . . . for the removal of goods", and because the Board could impose tolls under clause (b) of section 43 of the Act "for the use of the said wharves, quays, moorings, stages, jetties and piers, in case the Board permit the goods to be landed or shipped by others than their own servants". The amendment is thus neither outside the provisions of the Act, nor unreasonable. Moreover, it has been validly enforced because the provisions of section 57 of the Act have been complied with.

5. We propose to examine these two sets of arguments. The objection of non‑compliance with the provisions of section 57 need not detain us, because counsel for the petitioner has conceded that its provisions have been complied with.

6. The other contentions raised by counsel for the petitioner fall under two propositions of law. They are whether the amendment is ultra vires‑firstly, being outside the provisions of the Act, or secondly, being unreasonable. The first proposition is simple and need not be elaborated because if the amendment is beyond the powers of the Board in terms of the Act, then obviously it cannot be upheld. In accordance with the second proposition the .amendment should be quashed, as conceded by Mr. Fazlur Rahman, if it is unreasonable. It is unnecessary to cite authorities in support this view, but we may reproduce the following lines from Craies on Statute Law (Ed. V) p. 298 "There are five main grounds on which the bye‑laws may be' treated as ultra vires:- (a) That they are not made, sanctioned and published in tine manner prescribed by the statute which authorises the making of them. (b) That they are repugnant to the laws of England. (c) That they are repugnant to the statute under which they are made. (d) That they are uncertain. (e) That they are unreasonable. We wish to note here that unreasonableness of all bye‑laws is not to be judged by a uniform standard because a distinction is to be drawn between (1) the bye‑laws of those corporations which carry on business for profit and act incidentally for the advantage of the public and (2) the bye‑laws of those corporations which are either established wholly or chiefly to provide for public necessity or as corporate sections of governmental administration. In the latter instances credit is to be given to those who have to admi nister the bye‑laws with the intention that they mean to act reason ably. Subject to this distinction and presumption of the inten tion to act reasonably, unreasonableness is not to be allowed to go unchecked where its existence is established. In this connection, we may reproduce a paragraph from Maxwell on the Interpreta tion of Statutes (10th Edition) at pages 301‑302 :‑ "In determining the validity of bye‑laws made by public representative bodies under statutory powers, their consideration is approached from a standpoint different from that adopted towards bye‑laws of railway or other companies, which carry on business for their own profit, although incidentally for the advantage of the public. Courts of justice are slow to condemn municipal bye‑laws as invalid, on the supposed ground of unreasonableness, and support them if possible by a `benevolent interpretation, crediting those who have to administer them with an intention to do so in a reasonable manner, and with being the best judges whether a particular bye‑law is required in their district or not. But, on the other hand, if a bye‑law neces sarily involves that which is unreasonable, it is the duty of the Court to declare it to be invalid." Reproduction of the following sentence from page 302 'of the above‑mentioned book of Craies will not be out of place :‑ "A distinction is now drawn between municipal bye‑laves and bye‑laws made by companies which carry on business for their own profit."

7. Having stated and explained the relevant propositions of law we wish to point out that the Board of Trustees of the Port of Karachi is obviously a corporation which exists entity for the public benefit, and proceed to examine the facts of the case as well as contentions of counsel for the parties in the light of these propositions.

8. Taking up the first proposition in the first place, we have to see whether the charges imposed under the amendment are outside the provisions of the Act. There are only two sections under which the Board can levy and recover tolls, duos, rates and charges. They are sections 43 & 43‑A of the Act. The latter section is not applicable to the facts of this case, because under it the Board can recover `charges' for the use of any dock or water boat, for services rendered, for supplying certain articles, for towing any vessel and for giving certain assistance with which we are not concerned here. Section 43 is as follows :‑ "

43. The Board shall frame and, may from time to time alter‑ (a) a scale of tolls; dues, rates and charges for the landing and shipment of goods of the wharves, quays, stages, jetties and piers, and for the use of such wharves, quays, stages, jetties, and piers, and for the storing and keeping of any goods stored in any premises belonging to the Board and for removal of goods and for the use of any moorings ; (b) a scale of tolls for the use of the said wharves, quays, moorings, stages, jetties, and piers, in case the Board permit the goods to be landed or shipped by others than their own servants ; and (c) a scale of charges for any services to be performed by the Board or their servants in respect of any vessel or goods, or for the use of any works or appliances to be provided by the Board." Clause (c) of this section is obviously not applicable to this case. Mr. Fazlur. Rahman sought to apply clauses (a) and (b) on two grounds, namely, that under them `tolls' or `charges' could be imposed for allowing visitors to "use" wharves, quays, stages, jetties, piers and moorings, and "for the removal of the goods". We think that the provision in clause (.a) relating to the removal of goods is inapplicable, because the reference is to their removal by the Board itself. The Board has in certain circum stances to remove the goods from one place to another. It is unnecessary to explain those circumstances because they appear to us to be obvious and because their explanation will make it necessary to state in some detail the functions of the Board which have little relevancy for the present purpose. For partial explana tion of its functions we may refer to the judgment of Leggatt, A. J. C. in Prag Narain v. The Karachi Port Trust (4 S L R 236). Clause (b) is not applicable to this case because it relates to landing and shipping of goods.

9. The authority of the Board to impose tolls, dues, rates and charges for permitting the members of the public to use the places enumerated in clause (a) cannot be doubted. We presume that the use of the places is involved in the removal of the goods by the petitioner because this fact has not been questioned in the writ petition or by petitioner's counsel. The conclusion, therefore, must be that the Board has the authority under clause (a) to impose and recover tolls, dues, rates and charges from the petitioner for permitting him to use the premises by entering on them. It is unnecessary to decide whether the imposition falls under the expression `toll' or `dues' or `rates' or 'charges' although Mr. Fazlur Rahman has argued that the money recovered for issuing passes or tokens under the amendment was in the nature of a `toll' The words `dues' and `charges' are of general import and the words `tolls' and `rate' are wide enough to embrace all local charges imposed in consideration of. benefits conferred. The point at issue is not whether the money that is to be recovered by the Board under the amendment falls within the meaning of one word or the other, because by whatever name it is called, it is in consideration of allowing the visitor to use those places. . There can be no doubt that the visitor who enters on them, uses them, however slight or insignificant that use may be.

10. The Traffic Manager has tried to justify the '4imposition by pointing out in paragraph 8 of his counter‑affidavit that funds are needed "to defray the expenses in regulating the entryof persons entering the Port Trust area". He has emphasised this need by pointing out that it is necessary to make arrange ments "for the protection of the valuable cargoes of various persons stored therein". The justification is based on the pro visions of clause (b) of section 56 of the Act whereby the Board is authorised to make bye‑laws "for the safe and convenient use of such wharves, quays, stages, jetties, piers and of landing places, tramways, warehouses, sheds and other works in or adjoining the same". This provision does impose a duty on the Board which involves expenditure of money and, therefore, creates the necessity for raising funds.. It is, therefore, a duty of the Board to riase funds to meet this liability. if it were to make a default in raising sufficient funds to meet its liabilities, it would expose itself to action by the Government under section 81 of the Act, which is as follows : ‑ "

81. If it shall at any' time appear to Government that sufficient provision is not being made by the Board to meet their liabilities Government may require the Board, by an order in writing to increase, subject to its sanction and to the provision of section 43 to such extent and for such period as shall appear necessary, the tolls, dues, rates and charges or any of them for the time being in force under the said section. If within fifteen‑days after receipt of such order, the Board do not comply with the same, Government may, by notification in the Official Gazette, increase the said tolls dues, rates, charges or any of them, and such notification shall have the same force as if a new scale to the same effect had been duly framed, sanctioned and published under section 43." The justification of the Traffic Manager for raising funds should however not blur the distinction between the power of the Board to make bye‑laws under section 56 for safe and convenient use of the Port and its power to levy charges under section 43 of the Act.' The contention of counsel for the respondent appeared to mix them up because he was trying to point out that the Board had the authority to levy charges and at the same time to meet the argument of petitioner's counsel that the total amount recovered in terms of section 43 was enormous and out of pro portion to the needs of the Board. This argument of petitioner's counsel was advanced by him without producing on record any data in support of it and, therefore, we believe that the argument was not meant to suggest that raising excessive funds constituted a justiciable issue but that it was used merely to give an edge to the grievance of the petitioner that he was being charged twice over for doing the same act, viz. going to the Port area for taking delivery of cargo. In order, however, to remove the apparent confusion caused by the argument advanced simultaneously under sections 43 and 56 of the Act we may state that we do not consider the size of the fund raised by the Board to be ordinarily justiciable; nor do we consider it illegal that money should be recovered twice over from two points of view for doing the same act. We hold, therefore, that the Board is authorised in terms of section 56 (b) of the Act to introduce the pass system and in terms of section 43 (a) of the act to recover charges for permitting the use of the premises. The continued effect is the pass system.

11. This leaves for examination the contention of counsel for the petitioner that these charges are unreasonable even if they are within the letter of the law. The consideration of unreason ableness will involve the examination of the situation again from a different angle. Counsel did not as much analyse the allegation of unreasonableness with the help of. the facts of the case as he left it to be imagined in the presence of the allegations which are embodied in the seven contentions that have been summarised by us in paragraph 7 above. We presume that the unreasonable ness suggested by these contentions is taken by the petitioner to arise from three aspects of the situation; firstly it is suggested that there is an inconsistency between the pass system and the terms of the licence because the licence is meant to enable the peti tioner to remove cargo from the same premises for entering which he has to buy a pass; secondly, it is suggested that there is an inconsistency between the purpose stated in the original bye‑law of excluding from the premises improper characters, idlers and persons having no business within the premises and imposition of charges with this object on licensed muccadams, and thirdly, an inconsistency is suggested to exist between the compulsion imposed on the owners of cargo or their agents to enter the premises for removing their goods and‑the imposition of charges for their admission into the premises.

12. The so‑called inconsistency between the licence of the petitioner and the pass system disappears if it is noted that the licence granted to the petitioner to work as a clearing agent or muccadam is a recognition of his vocation only. He is able in virtue of his licence to represent the owners of cargo for removing their goods on their behalf. The owners themselves are liable to 1 pay for entering the premises and therefore their representatives cannot claim an exemption from the liability. If the agents have to pay for obtaining general recognition from the Board of being in the trade of clearing agents and again to pay for doing these acts for which their principals are liable to pay, then there is no inconsistency or unreasonableness in it. The licence does contain these words:‑ "to take delivery of cargo from the Karachi Port Trust within their premises" but the reason for a specific reference to the premises of Karachi Port Trust is that the licence relates to this aspect of the muccadam's trade and nothing more.

13. The second inconsistency does exist because the object of the bye‑law as stated in the bye‑law itself being to exclude from the premises improper characters, idlers and persons having no business in the area cannot be applicable to licensed muccadams but this inconsistency does not make the amendment unreason able, because employment of defective logic does riot make an obligation otherwise correctly imposed to be unreasonable. The reasoning of the bye‑law is bad but the obligation imposed on the petitioner to take a pass and pay for it is reasonable in view of the overall situation which we believe we have amply explained earlier.

14. The third inconsistency is inherent, if it is an inconsis tency, in the public use of the Port and the need of regulating that use. The Port cannot be used 6o its full advantage unless it is effectively and beneficially managed and this cannot be done without funds. In other words those who have to use the Port have b contribute for its mananement, maintenance and develop ment. The petitioner would have had a erase if he could displace the presumption of reasonableness of action that exists ire favour of the Board on the ground that it does not carry on business for profit. The petitioner could displace the presumption by showing that cargo was stored and kept by the Board within the area to which the pass system has been applied with the object of making money and not in the ordinary course things, but there is no such allegation of bad faith and there nothing unreasonable in raising funds from those who have to use the premises.

15. In conclusion, the petition is dismissed but the parties are to bear their own costs because there was some justification for the petitioner to come to Court owing to the defective text of the amended bye‑law No. 15‑A. K. B. A. Petition dismissed.