P L D 1958 Supreme Court (Pak (PLP)

MUHAMMAD MUN1R, C. J.‑This is a petition under 4krticle 22 of the Constitution praying for the issuance of writs of Mandamus and Prohibition against the Government of Pakistan, the Shipping Authority functioning under the Control of Shipping Act, 1947 and the District Magistrate of Karachi, on the ground that certain prosecutions under the Control of Shipping Act launched by the Shipping Authority against the petitioners are void and unconstitutional inasmuch as they are in contravention of some fundamental rights guaranteed by the Constitution to the citizens of Pakistan. The nine petitioners are partners of a firm carrying on shipping business in Karachi under the name of Messrs. East and West Steamship Company. The Company owns six ships which had been operating under the licensing system introduced by the Control of Shipping Act. Of these four, namely, Firdausa, Fausta, Fatura and Minocher Cowasjee (since sunk) are alleged to have rendered themselves liable to prosecution under section 8 of the Act by engaging in un authorized voyages. Each of these ships sailed from a home port under a valid licence granted by the Shipping Authority under section 3 of the Act, but on reaching its destination it is alleged to have sailed for a foreign port either under a charter‑party with foreigners or otherwise without a licence and is further alleged to have contravened certain directions or orders given by that Authority and two of them are stated not to have returned the licences as required by law on completion of their licensed voyages. The Shipping Authority has, therefore, instituted a separate complaint against the petitioners in respect of each of these ships under section 8 of the Act, which is pending for trial in the Court of the District Magistrate, Karachi. The present petition has been presented against this action of the Shipping Authority on the allegation that the provisions of the law under which action has been taken against the petitioners are ultra vires because they impinge upon the fundamental rights gu4ranteed by Articles 5, 11, 12 and 15 of the Constitution. To appreciate the argument which has been addressed by Mr. Brohi, learned counsel for the petitioners, it is necessary to state the main provisions of the Act under which com plaints have been instituted. The Control of Shipping Act was passed by the Indian Legislature in 1947 in exercise of the power derived by it from the India (Central Government and Legislature) Act, 1946 (IX and X Geo. 6, Ch. 39). The relevant provisions of that Act are as follows :‑

"

2. In this Act, unless there is anything repugnant in the subject or context,‑ (a) "coasting trade" means the carriage by water of passengers or goods between any port or place in Pakistan and any other port or place in the Indo‑Pakistan sub continent ;

(f) "Shipping Authority" means any authority or officer authorised by the Central Government by notification in the Official Gazette to perform the functions of a Shipping Authority under this Act. 3.‑(1) No ship registered in Pakistan shall be taken to sea from a port or place within or outside Pakistan except under a valid licence granted by a Shipping Authority under this section. (2) A licence granted under this section may be either a general licence or a specified voyage licence. (3) A general licence shall remain valid until it is revoked by the Shipping Authority which granted it, and a specified voyage licence shall be valid only for the particular voyage for which it is granted. (4) A licence granted under this section may contain such limitations and conditions as the Shipping Authority granting it may think fit to impose with respect to the trades in which the ship may engage and the voyages which it may undertake, and such limitations and conditions may be imposed so as to apply to the ship wherever it may be, or while in such waters or engaged in such trades or on such voyages, as may be specified. (5) When a licence ceases to be valid, the person to whom it was granted shall, without unreasonable delay, return it or cause it to be returned to the Shipping Authority which granted it. 3‑A.‑(1) No ship shall engage in coasting trade except under a valid licence granted by a Shipping Authority under this section. (2) A licence granted under this section may be either a general licence or a specified voyage licence or a licence for a specific period and shall be subject to such conditions as may be specified by the Shipping Authority granting the licence. (3) The Shipping Authority may, in its discretion, at any time, revoke, cancel or modify a licence granted under this section.

4. Without prejudice to the provisions of section 127 of the Merchant Shipping Act, 1923, no officer of Customs shall grant a port‑clearance to a ship registered in Pakistan or to a ship engaged in coasting trade until after the production by the owner or master thereof of a valid licence granted under this Act in respect of the ship. 5.‑(1) The Shipping Authority which granted a licence in respect of a ship under section 3 may, from time to time while the licence is valid, by order in writing give directions with respect to‑ (a) the ports or places, whether within or outside Pakistan, to which and the routes by which, the ship shall proceed for any particular purpose ; (b) the classes of passengers or cargo which may be carried in the ship ; . (c) the order of priority in which passengers or cargo may be taken on or put off the ship at any port or place, whether within or outside Pakistan. (2) The Central Government or any Shipping Authority may from time to time by order in writing give general or special ‑‑directions applicable to any ship registered outside Pakistan and about to proceed from a port or place in Pakistan to any port or place in the Indo‑Pakistan sub continent with respect to the order of priority in which passengers or cargo may be taken on the ship at such port or place in Pakistan; Provided that no directions under this subsection shall apply to any such ship which is not taking on passengers or cargo at a port or place in Pakistan for discharge at any port or place in the Indo‑Pakistan sub‑continent. (3) In cases‑ (a) where a Shipping Authority has power to give directions under subsection (1), or (b) where the Central Government or any Shipping Authority has power to give directions under. subsection (2), subject to the proviso to that subsection, the Shipping Authority or the Central Government, as the case may be, may from time to time by order in writing give general or special directions applicable to any ship with respect to the kind of cargo which may be carried in the ship, and the quantity in which such cargo may be put on board by any shipper specified in the order.

6. The Central Government may from time to time, by order published in the Official Gazette, fix in the prescribed manner the rates at which any ship, registered in Pakistan may be hired, and the rates which may be charged for the carriage of passengers or cargo taken on any ship, whether registered in Pakistan or not, at a port or place in Pakistan for discharge at any port or place in the Indo‑Pakistan sub continent. 9.‑(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for any of the following matters, namely :‑

(a) the forms of licences granted under this Act ; (b) the manner in which rates shall be fixed under section 6, including the constitution and functions of a Board to advise the Central Government in respect of such rates ; (c) the matters regarding which information may be required to be furnished under section 7." Section 8 prescribes penalties for different contraventions of the Act. The principal issue raised by Mr. Brohi is that section 3 of the Act, which provides that no ship registered in Pakistan shall be taken to sea from a port or place within or outside Pakistan except under a valid licence granted by a Shipping Authority under that section, has, under Article 4 of the. Constitution, become void inasmuch as it infringes the fundamental rights guaranteed by Articles 5, 11, 12 and 15 of the Constitution, and the fate of this petition depends on the determination of this question. Article 15 of the Constitution declares; "(1) No person shall be deprived of his property save in accordance with law. (2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on which and the manner in which compen sation is to be determined and given," (3) Nothing in this Article shall affect the validity of‑-- (a) any existing law, . . . . . ." In the course of arguments it was conceded by Mr. Brohi, that this Article is not relevant because the rights guaranteed by clauses (1) and (2) of the Article do not affect the validity of any existing law. The impugned Act being a pre- Constitution enactment is an "existing law" within the meaning of clause (3) of the Article and, therefore, its validity cannot be questioned on the ground, assuming such ground is made out, that it contravenes the right to property guaranteed by clauses (1) and (2). As regards Article 5, the position is equally clear in view of the fully considered judgment of this Court in Jibendra Kishore Achharyya Chowdhury and others v The Province of East Pakistan (P L R 1957 W P 684=P L D 1957 S C (Pak.) 9). The argument addressed to us in this case by Mr. Brohi is precisely the same as was advanced by Mr. Das in Jibendra Kishore' s case and which was successfully controverted by Mr. Brohi himself. That argument is that section 3 of the Act confers on the Shipping Authority a naked, arbitrary, uncontrolled and unqualified power which makes it possible for that Authority to discriminate between one ship-owner and another in the matter of granting licenses, and that for that reasons it offends against Article 5 of the Constitution. After carefully considering the American and Indian precedents and subjecting the argument to a rigorous test we held in that case that where a statute is not ex facie discriminatory but is capable of being administered in a discriminatory manner, the party challenging its constitutionality has to show that it has actually been administered to the detriment of a particular class or in a partial, unjust and oppressive manner. In the present case, therefore, if the Act, be not ex facie discriminatory, the petitioners in order to establish a right to relief are clearly under an obligation to show that the Shipping Authority has administered the Act to their detriment or in a partial, unjust and oppressive manner, but the petition, though it emphasizes the vastness of the powers given by the Act to the Authority, does not at all allege that ins the granting of licences it has in fact acted in an objectionable manner. In each of the four complaints there is a distinct allegation that the petitioners never applied for the voyages on which they embarked in an unauthorized manner. This allegation, in the case of two of the ships, namely, Minocher Cowasjee and Firdausa, is denied by the petitioners on affidavit and it is stated that licences for these ships were applied for and refused. If the petitioners' allegations are true they could have, by taking proper proceed ings in the High Court, questioned the improper exercise of discretion by the Shipping Authority, and if it had been made out that that Authority made any unreasonable discrimination between the petitioners and others, I have no doubt that the High Court by issuing an appropriate writ would have con trolled such improper exercise of that discretion because there can be little dispute about the proposition that where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party, and it seems to me to be equally clear that if the allegation be that a statute is being administered by a functionary in a discriminatory manner, his action can be successfully called in question on the ground that. it, offends against Article 5 of the Constitution. These propositions appear to me to be plain enough and are mere deductions from the special jurisdiction which has been conferred on the High Court by the Constitution. Since there is no averment in the petition that the Shipping Authority has actually acted in a discriminatory or in a malicious, partial, unjust or oppressive manner Mr. Brohi was at pains to show that section 3 is ex facie discriminatory. Here again the argument rests on the grant of vast powers to the Shipping Authority and on the suggestion that he may in fact act in a discriminatory manner without the person discriminated against knowing anything of such discrimination. This contention also was repelled by us in Jibendra Kishore' s case where we approved of the following statement of the law in American Jurisprudence and in Constitutional Law by Willis :‑-- "One class of cases in which the basis of classification approaches perilously near the point of arbitrary decision and which nevertheless has been sustained by the Courts as not denying the equal protection of the laws consists of those in which in certain instances the choice of a legislative body or of an administrative officer to whom a matter is committed is the sole basis of the classification. The common examples are cases where the power exists to limit the number of persons who may carry on a certain business or the places where it may be carried on. It is clear in some cases the public welfare may require such a limitation and that therefore, power to make it necessarily resides in the legislative body. When this is so; power to choose the persons or places must also exist. From a con sideration of cases of this type the conclusion seems to be inevitable that a classification may properly be made on the basis of the choice or selection of the legislative body or of administrative officers to whom the matter is committed. It is not to be presumed in such cases that the choice or selection is made in the one instance or authorized to be made in the other without regard to such considerations as may be relevant thereto; in fact, it may be so made and yet this will have no effect upon the validity of classification." (Am. Ju. Vol. 12, p. 174). "Is it proper classification to put in one class those who get the consent of a Board or of ah official and into another class those who do not, where no standard is set up to control the action of the Board or official. Some cases answer this question in the affirmative while other cases answer it in the negative. Perhaps the best view on this subject is that due process and equality are not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom it is conferred. If this is the correct position, the only question that would then arise would be the delegation of legislative power. If a statute declares a definite policy, there is a sufficiently definite standard for the rule against the delegation of legislative power, and also for equality if the standard is reasonable. If no standard is set up to avoid the violation of equality, those exercising the power must act as though they were administering a valid standard. For this reason there is a need for a judicial review to see whether or not power delegated has been exercised arbitrarily." (Willis' Const. Law. 586). The conferment of vast powers or discretion on an officer who administers an Act may be wise or unwise legislation, but the question before the Courts where the validity of conferment of such powers is questioned always is whether the provision granting such power is contrary to any direction of the Constitution. In the United States of America such grant is sometimes invalidated on the ground that it offends against the due‑process provision of the Constitution or that it delegates excessive legislative powers or that it denies equal protection of the law to the citizens, but as pointed out in Jibendra Kishore' s case nowhere in our Constitution is the concept of due process of law to be found in the sense in which it has been understood in American Jurisprudence. Of course, unauthorized delegation of legislative powers is as bad under our Constitution as under the American Constitution, and Mr. Brohi, while attacking the Act on the ground of Article 5, has presented on this part of the case a full argument, which I shall presently consider. But before doing so, I should mention that in this respect the generally accepted position, which is not denied by Mr. Brohi, is that no provision of the law can fall within the rule against delegated legislation if it is based on a policy, discoverable from that provision itself, which has to be implemented by the person against whom the charge of unauthorized legis lation is made. The impugned Act was passed in exercise of the newly conferred powers on the Indian Legislature and was essentially temporary measure, designed to meet the acute shipping situation that had for some time existed when it was passed. The object of the Act as stated in the preamble was "to provide ‑for the control of shipping for a limited period". The control of trade by sea was first introduced during the Second World War under rule 65 of the Defence of India Rules. Since such control was considered to be necessary even after the end of the War, an Ordinance, XX of 1946, had to 'he promulgated to retain it. This Ordinance having expired on 2,5th March 1947, a bill for the control of shipping was intro duced in the Legislative Assembly on the 17th March 1947 and this bill became the Control of Shipping Act 1947, Act XX VI of 1947‑the impugned Act. The bill was accompanied by the following Statement of Objects and Reasons :‑

"It is considered that conditions are still so abnormal as to make it necessary to continue a form of control with a view to ensuring the required priority for movement by sea of coal, foodstuffs, and other essential cargoes. With regard to ships registered in British India, the Bill provides for a system of licensing which will enable the shipping authority to specify the trades in which ships may engage and the voyages which they may under make, and also to issue directions in respect of passenger and cargo priorities and routes. Ships registered outside British India will not be subject to licensing, but may be given priority directions provided they are taking on passengers or cargo in a British Indian port for discharge at any port in the continent of India. By the exercise of these powers, Government will be able to ensure essential supplies of coal both for the railways and for industry in the South and West of India, and trans port of food-grains and salt from the west coast.

2. Provision has also been made for control over fares and freight rates. In existing conditions Government consider it desirable that this power should be taken in order to protect the public from exploitation ; fares and rates in nearly all other forms of transport are being con trolled, and it is not desirable that sea transport should be allowed to form an exception. This provision will also enable action to be taken, should circumstances necessitate it, to prevent rate wars and other forms of wasteful compe tition". The Act was to remain in force until the 31st day of March 1949, but because the shipping situation in Pakistan deteriorated further, section 3 of the Act was amended in 1949 so as to keep the Act alive after 31st March 1949. The reasons given for the Amending Act were :‑-- "The Control of Shipping Act, 1947, expires on 31st March 1949, unless extended. The Act gives authority for the regulation by licensing of ships registered in Pakistan. It also authorises the Central Government not only to fix the rates at which ships registered in Pakistan may be hired but also the rates which may be charged for the carriage of passengers or cargo taken on any ship, whether registered in Pakistan or not, at a port in Pakistan for discharge any where on the Continent of India. In view of recent evidence of a disposition to increase passenger and freight fates between Pakistan ports Government consider it necessary to retain the powers conferred by the Act for further five years". The situation, however, did not improve as had been expected and the operation of the Act had again to be extended in 1954. The reasons for this extension given in the Statement of Objects and Reasons were the same as in 1949, the only further reason stated being : "At present the Shipping industry is faced with a 'freight war' ; and in order to prevent passenger and freight rates between the ports of Pakistan from falling to uneconomic levels, or rising to abnormal heights Government consider it necessary to retain the power: conferred by the Act for a further period of 5 years". The objects and reasons of the Act stated from time to time, together with the policy underlying it, are all apparent from the Act itself. Thus the object of the Act is the control of shipping, though only for a limited period. The control is bi a licensing system according to which the licensing authority is the Shipping Authority. Only under a licence a ship registered in Pakistan may be taken to sea from a port or place within or outside Pakistan. A licence may either be in the form of a general licence or a specific voyage licence, and it may contain such limitations and conditions as the Shipping Authority may think fit to impose with respect to the trades in which the ship may engage and the voyages which it may undertake As regards coasting trade, no ship, Pakistani or foreign, is to engage in it except under a licence granted by the Shipping Authority. This licence also may be in either form and is subject to such conditions as may be specified by the Shipping Authority, who may also revoke, cancel or modify the licence. After a licence is granted, the Shipping Authority during the continuance of the licence may give directions with respect to (a) the ports or places, whether within or outside Pakistan, to which and the routes by which the ship shall proceed for any particular purpose; (b) the classes of passengers or cargo which may be carried in the ship; and (c) the order of priority in which passengers or cargo may be taken on or put on the ship at any port or place, whether within or outside Pakistan. In the case of ships registered outside Pakistan but about to proceed from a port or place in Pakistan, after taking on passengers or cargo, to any port or place in the Indo‑Pakistan sub‑continent, the Central Government or the Shipping Authority may give directions with respect to the order of priority in which passengers or cargo may be taken on the ship at such port or place in Pakistan. A direction in such a case may relate to the kind of cargo which may be carried in the ship and the quantity in which it may be put on board. Under section 6, the Central Government may fix in the prescribed mariner the rates at which a ship registered in Pakistan may be hired and the rates which may be charged for the carriage of passengers or cargo taken on any ship, whether registered in Pakistan or not, at a port or place in Pakistan, for discharge at' any port or place in the Indo- Pakistan sub‑continent. The Shipping Authority may require the master or owner of any ship in respect of which a licence is in force to furnish information regarding the class of passengers and cargo which the ship is about to carry or is capable of carrying or has carried during any specified period, and the rates of passenger fares and freight charges applicable to the ship. For carrying out the purposes of the Act, the Central Government has the authority to make rules, in particular, rules providing for the forms of licences, the manner in which rates may be fixed, the constitution and functions of a Board to advise the Central Government in respect of such rates, and the matters regarding which information may be required to be furnished to the Shipping Authority. Any contravention of the provisions of the Act requiring the taking of a licence, or of any condition, order, direction or limitation is made punishable. From these provisions it seems to be perfectly clear that the Act proceeds on a definite policy, namely, the policy of placing the ships, for the period of the emergency, sub stantially at the disposal of the Government to enable it to direct what classes of cargo or passengers may be carried, to claim priority for Government cargo and passengers, to fix rates and freights, and to know the exact position of a Pakistan ship at a particular time so that if any urgency arises it may be called back for home service. This policy could successfully be carried out only if full powers which could not be controlled by rules, were given to the Shipping Authority, and the licensing system contemplated by the Act is merely a means for the Shipping Authority to requisition shipping space to satisfy urgent and exceptional trade needs of the country. Financial injustice to the owners is avoided by the provision for a Board to advise the Central Government in respect of rates. Acting within the frame work of the Act the Shipping Authority can protect Pakistan shipping against foreign com petition, by regulating the rates can avoid cut‑throat competition between Pakistan shipping companies on the one hand and prevent them from pooling together with a view to raising the rates to abnormal heights on the other. In the same manner the Authority can regulate exports and imports and maintain trade in essential goods and commodities between the two wings of the country which are separated by a distance of 1500 miles and between which trade by air is impracticable and transport by rail can only be through a foreign country. If these were the objects intended to be attained by the Act, it was not possible for the legislature to define in meticulous details how the Shipping Authority was to act in particular circumstances, and it was rightly considered to be necessary to leave him a large field of discretion so that he could act freely to meet a situation as it arose. The legislature could not have possibly anticipated the varying trade situations, what the needs of Government or the com munity in the matter of carriage by sea may be, and what essential supplies would be needed from time to time by each wing, In view of this uncertainty considerable latitude had to be left to the Shipping Authority to cope with all possible situations. Even where legislation, which vests in public officials absolute discretion to grant or refuse a licence to carry on an ordinary business, profession or activity without prescribing definite rules and conditions to guide them in the execution of their discretionary power, has been held to be invalid on the ground of unauthorised delegation of legislative powers, an exception has always been recognized in the case of situations which require the vesting of discretion in public boards or officials where it is difficult or impracticable to lay down a definite comprehensive rule or the discretion relates to the administration of licensing requirements to protect the general welfare. In the present case, the legislature thought that the control of shipping was necessary in the interest of public welfare and from the very nature of the trade to be regulated it was necessary that the Shipping Authority should have abundant discretion if the policy and purposes of the Act were to be carried out. The Act is not, therefore, ex facie bad either on the ground of excessive delegation of legislative authority or on the ground that the Shipping Authority if it were so minded could administer it in a discriminatory manner. Objection on the first ground must fail because the Act lays down a policy which the Shipping Authority has to implement by the exercise of powers given to him, while objection on the second ground must be repelled because the petition does not allege any discrimination in practice. I now come to the question whether the Act offends against Article 12 of the Constitution. That Article is as follows .‑‑‑‑ "Every citizen, possessing such qualifications, if any, as may be prescribed by law in relation to his profession or occupation, shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business ; Provided that nothing in this Article shall prevent‑

(a) the regulation of any trade or profession by a licensing system, or (b) the carrying on, by the Federal or a Provincial Government or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion complete or partial, of other persons". In the petition a point was raised that the petitioners are carrying on the business of shipping and not a trade, and that therefore by clause (a) of the proviso which omits the word 'business' occurring in' the body of the Article, it is beyond the powers of the legislature to regulate a business by a licensing system. But the contention was not pressed in the arguments, and advisedly, because there is a host of precedent in American case‑law, including decisions of the Federal Supreme Court, to the effect that the power to regulate commerce includes the power to regulate manufacture, agriculture and transport. Johnson, J. in the celebrated case of Gibbons v. Ogden (6 Law Ed. 23 at 78) while referring to the power of Congress to control navigation said: "I do not regard it as a power incidental to that of regulating commerce; I consider it as the thing itself ; inseparable from it as vital motion is from vital existence". And as regards the carrying trade in general he remarked: "Shipbuilding, the carrying trade, and propagation of seamen, are such vital agents of com mercial prosperity, that the nation which could not legislate over these subjects would not possess power to regulate commerce". As it is of the very essence of trade that merchandize should move from one place to another, the carriage of goods for purposes of commerce, whether by sea or by land, by rail, tramway or motor vehicles, is essentially a trade activity. Strongly relying on the Privy Council decision in the case from Australia, Hughes & Vale Proprietary Ltd. v. State of New South Wales and others ((1954) 3 All. E R 607) Mr. Brohi has urged that because the Constitution guarantees freedom of trade, a law authorising a licensing system which may have the effect of prohibiting trade must be held to be uncon stitutional because what the Constitution permits is regulation and not prohibition of trade. In order to determine whether Mr. Brohi can derive and support from this decision it is necessary to examine the facts of that case and to state the true import of the Privy Council judgment. Section 92 of the Commonwealth of Australia Con stitution Act, 1900, declares : "On the imposition of uniform duties of customs, trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. . . " The New South Wales State Transport (Co‑ordination) Act, 1931 to 1952, provided for the licensing of motor vehicles engaged com mercially in the transport of passengers and goods on the public highways of New South Wales, prohibited all unlicensed transportation, and authorised the imposition of certain charges on transport operations. The licensing authority under the Act was the Director of Transport and Highways who had the power to grant or refuse the application of any person for a licence or any application in respect of any vehicle, area, route, road or district. The licence was subject to the performance and observance of condition of the license relating to fares, freights and charges and the Director could determine whether the licensed public motor vehicle could carry passengers only or goods only or goods of a specified class or description only as well as the area, route, road or district where the licensed vehicle could operate. The appellant, a company incorporated in New South Wales, carried on business as a carrier of general merchandise between Sydney in the State of New South Wales and Brisbane in the State of Queensland and was the owner of certain public motor vehicles in respect of which it held licences under the Transport Act on the granting of which certain mileage charges were imposed. In an action in the High Court of Australia the appellant sought declara tions, inter alia, that the State Transport (Co‑ordination) Act, 1931, was beyond the powers of the Parliament of the State of New South Wales and that certain charges imposed on the appellant thereunder were invalid. Following some earlier decisions the High Court of Australia held the Act to be valid, but on appeal to the Privy Council it was held that as a simple prohibition of the trade of an individual was not merely regulatory of the trade because the individual was thereby not allowed in effect to carry on his trade at all, so the prohibition in the Transport Act of the operation of transport unless authorised by licence which might be granted or with‑held at the discretion of a State authority was not merely regulatory of trade, commerce and inter course among the States and that therefore the licensing provisions of the Transport Act contravened section 92 of the Constitution and were invalid as regards inter‑State Transport. This case had been preceded by several other similar cases called Transport cases some of which had come up to the Privy Council, and it had been generally held in them that laws regulating trade and commerce did not offend the direction in section 92 of the Commonwealth Constitution Act that trade, commerce and intercourse among the States shall be absolutely free. In the case before the Privy Council the High Court of Australia had held by a majority that the Transport Acts did no more than regulate trade and that therefore it was not unconstitutional. The Privy Council, however, agreed with the opinion of the minority that if the effect of the provisions of a licensing Act is to prohibit a trade, it offends section 92 of the Australian Constitution because regulation of trade does not mean prohibition of it, and approvingly cited the following observations of Dixon, C. J. who had delivered a dissenting judgment in the case :‑-- "The carriage of goods by road, which forms a most important part of this very thing is made the subject of heavy imposts and of a definite prohibition except in so far as a branch of the executive Government of the State thinks fit to permit particular persons to carry goods by specified vehicles. No conditions are laid down by the fulfilment of which a man may become entitled to a licence. It lies entirely within the discretion of the Director of Transport and Highways acting under the direction of the Minister. The refusal of an application for a licence on grounds that are arbitrary or fanciful or that no man could regard as lying within the scope or policy of the legislation would not suffice, but the discretion otherwise is absolute and in no circumstances has anyone an enforceable title to a licence. To me these rather simple considerations appear decisive. In face of them I have not been able to see how it can be said that this branch of inter‑State trade is absolutely free". In McCarter v. Brodie (1950 A L R 385) Fullagar, J. in dissenting from the majority had observed :‑

"It is quite impossible, in my opinion, to distinguish the present case from the case of a simple prohibition. If I cannot lawfully prohibit altogether, I cannot lawfully prohibit subject to an absolute discretion on my part to exempt from the prohibition. The reservation of the discretion to exempt by the grant of a licence does not alter the true character of what I am doing. This was, indeed, as I have pointed out, one of the two things that were really decided in James v. Commonwealth, though it was naturally treated as more or less self‑evident, and the contrary view does not seem to have been very seriously argued. Such cases as Melbourne Corpn. v. Barry and Swan Hill Corpn. v. Bradbury do not, of course, afford exact parallels to such cases as the present, because they turn primarily on the meaning of the word 'regulate' in a statute, but they are, in my opinion, precisely in point, since one thing that they make plain is that, if a legislative body cannot lawfully prohibit altogether, it cannot lawfully prohibit subject to an administrative discretion to exempt from the prohibition. It is quite true to say that regulation may involve partial prohibition, but it is quite untrue to say that total prohibition subject to discretionary exemption or 'licensing' is merely partial prohibition within the meaning of that proposition". The Privy Council accepted these opinions of Dixon, C. J. and Fullagar, J. as correct, as will appear from the following passage;

"Their Lordships will shortly make some brief observations on this passage, but on the specific question before them whether or not the licensing provisions in the Trans. port Act contravene section 92 of the Constitution, they are entirely in agreement with the view of the minority of the High Court and with the observations, quoted above, made by the Chief Justice in expressing his 'personal opinion'. They would gratefully adopt as their own these observations and, subject to a reservation about to be stated, the passages already quoted from the judgments of Dixon, J. and Fullagar, J. in McCarter v. Brodie". The following paragraphs from the judgment of Taylor, J. who was in the minority were also approvingly cited by the Privy Council :‑-- "For if the legislature itself may not, without infringing section 92, assert a right, at its absolute discretion, to permit or prohibit banking, it is, to me, inconceivable that it may, without infringing section 92, confer such a right upon a subordinate body. This, of course, is very far from saying that trade and commerce may not be made the subject of regulation either through the medium of a licensing system or otherwise ; nor does it deny the proposition that regulation may include partial prohibition or prohibition sub‑modo". "I understand from these and other relevant observations of his Honour that if the licensing authority had been invested with an unlimited and arbitrary discretion, a conclusion, that the legislation infringed section 92 would have been inevitable, for such legislation could not be regarded as regulatory. If this be so, legislation of this character must infringe section 92 unless the discretion to refuse a licence is limited to or confined within the ambit constituted by those matters which should properly be regarded as regulatory of the trade or commerce concerned. For I can see no relevant distinction between an arbitrary discretion and one, which though not capable of being exercised on any grounds at all, authorises the licensing authority to travel outside the field of regulation. This is the very activity which is denied to the legislature itself and, that being so, any enactment purporting to authorise a subordinate authority to do so must be invalid. In my opinion section 17 of the Act under review in this case, even if it does not confer a complete and arbitrary authority to grant or refuse licences, does . confer an arbitrary authority‑to refuse licences on ground other than those which may properly be regarded as regulatory of the trade or commerce concerned". Mr. Brohi argues that Article 12 of our Constitution must be construed in the same manner as section 92 of the Constitution of Australia was construed by the Privy Council, but the fallacy underlying the argument is quite obvious. The Constitution of Australia had provided that trade, commerce and intercourse between the States "shall be absolutely free" and what the Privy Council ruled was that if a licensing law has the effect of prohibiting trade that law offends against section 92 of the Constitution. In the present case, the position is fundamentally different because our Constitution expressly provides that a trade may be regulated by a licensing system. Further, in the Australian Constitution there was no proviso like the one we have in Article 12 ; on the contrary section 92 had enjoined that trade and commerce shall be absolutely free. If, therefore, the licensing law had the effect of ‑prohibiting a trade, it clearly came into conflict with section 92 of the Australian Con stitution. In our Constitution the right given by Article 12 has to be read subject to clause (a) of the proviso which expressly states that a trade may be regulated by a licensing system, and if the effect of a licensing system be prohibition as it was so held in Hughes's case, then it follows that prohibition of a trade by a licensing system was contemplated by the framers of the Constitution. The definition and general nature of a licence is thus stated at p. 32 of the 33rd Volume 9f American Jurisprudence:‑-- "In its specific sense, to license means to confer on a person the right to do something which otherwise he would K not have the right to do. A licence is in the nature of a special privilege rather than a right common to all, and is often required as a condition precedent to the right to carry on business or to hold certain. classes of property within the jurisdiction". ' This is the precise effect which the Privy Council gave to the licensing law, the validity of which was questioned in Hughes's case, by holding that the licensing system there had the effect of prohibiting the trade. The two Indian cases cited on behalf of the petitioners, Messrs. Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh and two others (1954 S C R 803) and Thakur Raghubir Singh v. Court of Wards Ajmer arid another (1953 S C R 1049), are not in point because they relate to "reasonable restrictions" that may, under the Indian Constitution, be imposed on trade and the enjoyment of property, but it is significant that in Harishankar Bagla and another v. The State of Madhya Pradesh ((1955) 1 S C R 380), regulation of trade by a licensing system was held to be a reasonable restriction. Where the right to regulate trade is given to the legislature by the Constitution, it is always assumed that regulation may be by a licence. Thus in the United States of America where, under the Constitution, Congress possesses the power to regulate trade or intercourse, it may regulate such activity by means of licences as well as in other modes and the States, where under their police power they have the right to regulate trade in order to protect the public welfare, may, subject to the restriction of reasonable classification, regulate it by a licensing system, the word `regulate' having received a very wide signification there. Thus in Gibbons v. Ogden Chief Justice Marshall while describing the power of the Congress to regulate inter‑State commerce said :‑ "It is the power to regulate ; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Consti tution". And Johnson, J. said in that case that the power to regulate means the power to limit and restrain at pleasure. In National Labour Relations Board v. Jones and Laughlin, Steel Corporation (301 U S 1 at p. 37) Hughes, C. J. observed that the power to regulate implies a power to foster, protect, control and restrain. This is not disputed by Mr. Brohi who admits that where the Constitution gives to the legislature the power to regulate trade, that power includes in it the power to limit and restrain. What he contends is that the power to regulate does not include the power to prohibit. But if the Constitution gives to the legislature the power to regulate a trade by a licensing system, it must follow that the power to prohibit vests in the legislature .in so far as the trade under such system may only be carried on by the licensed persons or corporations. I am therefore, of the view that the Control of Shipping Act which permits the carriage of goods by ships only under a license is not repugnant to Article 12 of the Constitution. The decision of this Court in Waris Meah v. (P L D 1957 S C (Pale.) 157) The State and (2) The State Bank of Pakistan (1) is clearly distinguishable because in that case the Act which was held to be ex facie discriminatory and therefore bad had provided three different procedures with substantially different penalties for the trial of the same offence and the decision to adopt one procedure or another was left by the Act to the Central Government or the State Bank of Pakistan. As regards Article 11 of the Constitution, the position is perfectly simple. That Article provides that subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to acquire, hold and dispose of property. Mr. Faiyaz Ali, Attorney‑General of Pakistan, has contended that where the disposal of property takes the form of trade in that property, the Article that governs the situation is Article 12 and not

11. This argument may be correct, but it does not cover the present case because here the property held by the petitioners is ships, and these ships are not being disposed of by trade. they not being the stock‑in‑trade of the petitioners. As 1 have already pointed out what is trade in the present case is the business of carriage of merchandize by sea that is being carried on by the petitioners. It is not alleged p by the petitioners that any restrictions have been imposed by the Act on the acquisition of ships and the Act imposes no restrictions whatsoever on the petitioners' power to dispose of the ships. The only question then left is whether the requirement that the ships can carry goods or passengers only under a licence amounts to a reasonable restriction in the public interest. The answer to this question must be in the affir mative because the special conditions in which the Control q of Shipping Act was passed still exist, and it is necessary in the public interest to impose restrictions on the free use of the ships in order to provide for national needs which cannot otherwise be met. For these reasons, I would dismiss this petition with costs. SHAH ABUDDIN, J.‑I agree. MUHAMMAD SHARIF, J.‑I agree. AMIRUDDIN AHMAD, J.‑I agree. CORNELIUS. J.‑I agree that this petition should be dis missed. The ground upon which I feel the necessity of stating my reasons in a separate judgment is that I take a substan tially different view regarding the content and meaning of the relevant provisions of Article 12 of the Constitution from that conveyed in the judgment prepared by my Lord the Chief Justice, which I have had the advantage of reading. I consider too, that at this early stage in the process of inter pretation of the Fundamental Rights which the people of Pakistan have conferred upon themselves in express terms by means of the Constitution which came into force on 23rd March 1956, any effort and thought, which is applied to the ascertainment of the true scope and meaning of the Articles embodying these rights, cannot be undertaken in vain. The very wide and general terms in which the Fundamental Rights have been expressed will. no doubt be the subject of interpretation by the Courts for a great many years to come, and I apprehend (I say so with all respect), that it will be a very long time before the full scope, extent and meaning of these words are judicially ascertained with finality. The question at issue in the case is whether the Control of Shipping Act, 1947 and in particular section 3 thereof is a valid piece of legislation when tested against the constitutional requirements applicable to such legislation, as stated in certain Articles of the Constitution, namely Articles 5, 11 and

12. The petitioner is a company known as the East and West Steamship Company, which owns six ocean‑going vessels of which one is said to have been lost at sea since the commence ment of the proceedings out of which the present petition arises. The Company through its partners has been prosecut ed by the Controller of Shipping, acting as Shipping Authority under the Control of Shipping Act, 1947 in respect of four ships including that which has been stated above to have been lost at sea, upon the allegation that these ships have been operated on the ocean routes of the world without the necessary permits for each voyage from port to port as required by section 3 of the said Act. The relief claimed in the petition is a "Writ of Mandamus or Prohibition or any other appropriate Writ or Order . . . . . . . against the respon dents restraining them from enforcing the provisions of the Control of Shipping Act, 1947 against the petitioners and their partners", and that the records and proceedings of the four prosecutions should be summoned from the Court of the District Magistrate, Karachi where they are pending and the proceed ings should be quashed. The ground upon which the relief is sought has been very clearly stated in a document printed at page 57 of the paper‑book, being a letter sent on behalf of the petitioner company by their counsel to the aforesaid Controller of Shipping. The relevant passage read as follows :‑

"The Controller of Shipping, Government of Pakistan, as the Shipping Authority under the Control of Shipping Act, 1947, acting under the orders of the Ministry of Commerce, Government of Pakistan, has filed four prosecutions against the partners of my clients' firm in the Court of the District Magistrate, Karachi in respect of the said 4 ships under section 8 of the Control of Shipping Act, (Act XXVI of 1947). My clients challenge the validity of the said Act as it confers uncontrolled and unregulated powers on the licensing authority and/or the Government in issuing licenses or orders and further the provisions of the said Act are inconsistent with. and violative of the fundamental rights enjoyed by tile citizens‑of Pakistan under Articles 11 and 12 of the Constitution of the Islamic Republic of Pakistan. The said Act is therefore void and/or has become void. Under the circumstances, my clients contend that the four prosecutions filed against their partners are illegal and are bad in law". In the petition, besides Articles 11 and 12, Articles 5 and 15 have also been cited as having been violated by the Shipping Authority in relation to the petitioner company and its property. I conceive that the first step which it is necessary to take in the process of determining whether a certain statute is within the provisions of the Constitution, or is ultra vices of the Constitution is, by a close examination of the provisions of that statute to determine what is its pith and substance, in other words what is its real nature, and upon a proper analysis and true construction, what does the statute in its essence, enjoin or provide or what does it empower the doing of. Until the pith and substance have been ascertained to the satisfaction of the person making the enquiry, it is not possible for him to take the next step which is that of determining whether the provisions of the statute are covered or authorised by the Constitution, and if so by which particular provision in the Constitution. The familiar cases in the Indian jurisdiction, before the country had yet been divided, were those in which a contest arose on the question whether a statute was related to a Federal subject or to a Provincial subject. In the present case, the nature of the controversy is different. Grounds for regarding the statute as violative of either Article 5 or Article 15 of the Constitution or not easily apparent. It was conceded by Mr. Brohi for the petitioner Company that he could not base any strong argument in relation to Article 15 which deals with the subject of compulsory requisition or acquisition of private property. As regards Article 5, which has already been the subject of interpretation in the East Bengal State Acquisition and Tenancy Act case (PLR1957WP684=PLD1957SC (Pak.) 9), it was conceded by Mr. Brohi that on the face of it section 3 of the Control of Shipping Act, 1947 was not discriminatory, and the petitioners have not alleged and have not attempted otherwise to show that there has been discrimination in the exercise of powers by the Shipping Authority under that section. Accord ingly, I shall proceed with the examination of the case on the basis that Articles 5 and 15 of the Constitution do not touch the question arising for decision here. The matter thus falls to be examined in relation to the provisions of Articles 11 and 12 of the Constitution only. Article 11 confers upon every citizen the right to acquire, hold and dispose of property, the sole qualification upon the right is that it is "subject to any reasonable restrictions impos ed by law in the public interest". The provisions of Article 12 relevant to this case are that every citizen has the right to conduct any lawful trade or business, subject to the qualifica tion that any trade may be regulated by a licensing system. The contention of the State is firstly that the Control of Shipping Act, 1947 is nothing more or less than a licensing system applicable to the regulation of the trade of shipping, and therefore any interference with the conduct of such trade which results from the exercise of powers under the Act is protected. Secondly it is urged that the restrictions which are imposed under the Act upon the right of the ship‑owners to hold, that is to say, to use their ships, is a reasonable restric tion imposed by law in the public interest. It is evident that if the law is found to fall within the qualifying provisions, under either Article 11 or Article 12, it will be a valid law and the petition must fail. My view is that the law in ques tion falls clearly under Article 11 as well as under the qualify ing provisions under that Article, and therefore the petition must fail. At the same time I consider that the law constitutes a violation of the main provision under Article 12, guaranteeing a right to conduct a lawful trade, and I consider also that a law expressed in the terms of the Control of Shipping Act relating to any trade, cannot fall within the saving provided for regulation of trades by a licensing system. It is because the latter conclusion is of a general nature that I feel it to be my duty to state my views on the point as clearly as is possible, consistently with the requirements of brevity. It is necessary, at this stage, to state the principal provi sions of the impugned Act. The preamble states that "it is expedient to provide for the control of shipping for a limited period" The Act was passed to replace a rule made under the Defence of India Act, 1939 namely rule 65, and an Ordi nance of the year 1946 by which the provisions of that rule were continued. The Statement of Objects and Reasons with which the bill was published made it clear that the Act was thought necessary because conditions were still abnormal to such an extent as to require that a form of control should be continued to ensure the "required priority for movements by sea of coal, food‑stuffs and other essential cargo". As the operative provisions of the law in question are set out in detail, it will become obvious that, at a time prior to the partition of India, these provisions could only be justified by the existence of urgent and extreme necessity to maintain sea communications for the proper provisioning of the forces which were engaged in hostilities at various points on the surface of the earth, as well as for maintaining supplies and services in India, and possibly elsewhere, which were necessary for the life of the community. It will be necessary later in this judgment to examine certain features of necessity arising out of the fact that the division of India has occasioned the circumstance that Pakistan is in two parts, divided by over a thousand miles of land, and about two thousand miles of sea. Therefore, it is only natural and should occasion no surprise, in view of the continuing abnormality of conditions affecting the supply position in both wings, to find that the Act has been continued from time to time. In its present form it stands extended up till the 31st of March 1959. Section 3 of the Act contains its main operative provisions. It provides that no ship which is registered in Pakistan shall be taken to sea from any port, anywhere in the world except under a valid licence issued by a Shipping Authority, which may be general or for a specified voyage only. What is meant by a general licence is not made clear in the Act ? If there be any such thing as a licence granted to a ship to move from any port to any other port for an indefinite period of time, that would not be a licence granted under the Act, since it would have the effect of practically nullifying the provision that every movement of a ship from a port out to sea must, if the ship be registered in Pakistan, be authorised by a valid permit issued by the Shipping Authority. The section goes on to say that a general licence shall remain valid until it is revoked by the Shipping Authority, and the effect of that might be that the Shipping Authority is granted complete discretion to exempt any ship from the provisions of section 3 for as long as he pleases. It might be more reasonable to interpret a general licence as one which is limited in point of time. That question does not arise here, however. There are further provisions in section 3 to the effect that the licence may specify the trade or trades in which the ship may engage, it may specify the voyages it may perform, and it may impose limita tions and conditions even in regard to the engagement of the ship in such trade or trades, or its performance of the voyages permitted and these limitations may be imposed either generally, or in relation to particular waters. By way of au enforcing provision, section 4 provides that no Officer of Customs shall grant "port clearance" to a Pakistan‑registered ship unless a valid licence under section 3 is produced in respect of the ship. Section 5 gives further detailed powers to the Shipping Authority in respect of a ship to which he has granted a licence under section

3. It provides that while the licence is valid, the Shipping Authority may issue directions by which he may specify the port or ports which the ship may touch, the sea routes which it may follow, what classes of passengers and what kinds of cargo it may carry, and in what order it may take on or put off passengers or cargo at any port which it may touch. Further, the Shipping Autho rity may give general, or special directions applicable to any ship with respect to the kind of cargo which may be carried in the ship and the quantity in which such cargo may be put on board by any shipper specified in the order. This section also contains provisions relating to ships not registered in Pakistan, which are practically of the same degree of strin gency as those made by the section in relation to Pakistan registered ships, but these need not be mentioned in detail here. By section 6, the Central Government is empowered to fix shipping rates in respect of "any ship registered in Pakistan" that is to say "the rates at which the ship may be hired and the rates which may be charged for the carriage of passengers or cargo taken on any ship", the latter power being applicable also to ships not registered in Pakistan, and being confined to carriage from a port in Pakistan to any port in the Indo‑Pakistan sub‑continent. Section 7 has a provision enabling enforcement of the rate fixing power conferred by section 6.. It enables a Shipping Authority to call for infor mation from the owner or the master of a ship on relevant points. Section 8 contains a statement of penalties for infringements of the provisions of sections 3, 5, 6 and

7. The last section namely section 9 gives powers to the Central Government to make rules for carrying out the purposes of the Act. It does not need words of unusual emphasis to achieve a correct description of the provisions mentioned above. It seems perfectly clear that the Act was designed to give to the Government acting through the Shipping Authority complete control over the movements of any ship registered in Pakistan, which was engaged in the shipping trade. The essential operations of that trade are, firstly, to contract with persons to carry either individuals or cargo from one port to another by sea, in consideration of the payment of agreed fares and freights, and secondly to provide a sea‑going vessel which satis fies the requirements of the laws relating to such vessel for the purpose of effecting such transport. Throughout the Control of Shipping Act, it is assumed that the ship in ques tion satisfies the requirements of the law relating to ships and to the carriage of goods and passengers, in all respects. It empowers the Shipping Authority to exercise complete and detailed control over each movement of each vessel regis tered in Pakistan, wherever in the world it may be. Therefore, on the operational side the Shipping Authority is the master of every movement that the ship may make or that its owner may wish it to make in the pursuit of trade. As regards the choice of that trade, what classes of passengers and what kinds of cargo may be carried, in what order the passengers or cargo shall be taken on board, 'what route should be followed in conveying such passengers or cargo from one port to another, the owner and the master of the vessel are under the complete control of the Shipping Authority. As to what rate shall be charged for the carriage of passengers and cargo and even what cargo shall be taken and in what quantity and which passenger shall be given priority in being taken or put off, neither the owner nor the master of the vessel can exercise any independent choice or discretion. In these respects which pertain to the commercial side of the trade, as in all respects affecting the operational side, complete control is vested in the Shipping Authority. Clearly, the Act by express words purports to interfere with the conduct of the trade of shipping, It purports to curtail what the main part of Article 12 expressly confers as a fundamental right upon the citizens of Pakistan. That Article declares in unequivocal terms that every citizen shall have the right to conduct any lawful trade or business. In so doing, the Article merely furnishes a fresh and authoritative declaration of a pre‑existing right under the common law. It may not be out of place here if I cite a few statements of considerable authority upon the subject. Lord Halsbury in the Mogul Steamship Company case (LR1892ACp.25) declared as follows :‑

"Now it is not denied and cannot be even argued that prima facie a trader in a free country in all matters not contrary to law may regulate his own mode of carrying on his trade according to his own discretion and‑choice". Again, in the Adelaide Steamship Company case (LR1913AC781(PC)) Lord Parker of Waddington made the following pronouncement upon the subject :‑

"At common law every member of the community is entitled to carry on any trade or business he chooses and in such manner as he thinks most desirable in his own interest, and inasmuch as every right connotes an obligation, no one can lawfully interfere with another in the free exercise of his trade or business, unless there exists some just cause or excuse for such interference . . . . . Speaking generally, it is the interest of every individual member of the community that he should be free to earn his livelihood in any lawful manner, and the interest of the community that every individual should have this freedom". This quotation furnishes a concise and happy expression of the reasons underlying the granting by the citizens of Pakistan to themselves of the fundamental right of freedom to conduct any lawful trade. One further quotation relevant to the subject may perhaps be permitted namely the words in paragraph 554 of the monograph on Trade and Trade Union in Halsbury's Laws of England, Hailsham Edition Volume XXXIII. It reads as follows :‑

"It is the general principle of the common law that a man is entitled to exercise any lawful trade and calling as and when he wills ; and the law has always regarded jealously any interference with trade, even at the risk of interference with freedom of contract, as it is public policy to oppose all restraints upon liberty of individual action which are injurious to the interests of the State". One may therefore safely conclude that among the consi derations which guided the Constitution makers in the drafting of Article 12, so as to secure freedom to the citizens of Pakistan to conduct any lawful trade, the place of greatest importance must be given, firstly, to the necessity of ensuring to every individual member of the community, a right to engage in lawful trade according to his choice and to exercise that trade in a mode settled ‑ by him at his own discretion and choice, within the legal requirements, and secondly that the interests of the community should be advanced, by the grant of such liberty to individual citizens, and that every action which tends to interfere with that liberty should be repressed, since it would be injurious to the interests of the State. But it is said that by proviso (a), the State is authorised to regulate any trade by means of a licensing system, and it is said that the Control of Shipping Act is nothing more or less than a licensing system in relation to the conduct of the trade of shipping, It has already been seen upon analysis that the Control of Shipping Act, in the relevant respects, provides for interference by the State with the primary processes of the trade of shipping, both on the organizational as well as on the commercial side, and that it purports to do so not in respect of the trade generally, not in respect of all ships owned by a particular company or individual, but in respect of individual ships. The language of the Act leaves no room for doubt on this point. Each single ship in order to move out of the port where it happens to be at rest for the time being must be equipped with a permit. With respect to individual ships, the State has authority to regulate what passengers shall be carried and in what classes, what cargo shall be carried, and which shipper's cargo, in what priority passengers and cargo shall be taken on or set down, and finally the rates of fare and freight "applicable to any ship" are within the authority of the State to settle. The control that is vested by the Act in the State authorities may be truly described as systematic in the sense of reducing the owner and the master of a ship which falls within the mischief of the Act to a position of mere servitude. But that does not constitute the Act a "licensing system." Nor does the Act acquire that character from the mere circumstance that the written authority issued under section 3 is described as a licence. A system, in my opinion, would in the relevant respect mean an arrangement by way of regulation, applicable to a complex whole namely the trade of shipping in general. It would provide for rules applicable uniformly, subject to suit able classification, in relation to the entire trade of shipping. Again, it is inherent in the use of the expression "licensing system" that the actions of the State in respect of the trade should be in the nature of permissions granted to do certain acts provided certain conditions are satisfied; it goes entirely beyond the meaning of the expression "licensing" to interpret it as a check upon even the primary processes involved in the trade which is being licensed. A simple meaning of the expression "licence" in the sense relevant to this discussion is that contained in the Concise Oxford Dictionary reading as under :‑ '' permit from Government etc., to marry, print some thing, preach, carry on some trade (especially that in alcoholic liquor), etc." While it is true that upon this interpretation, no person can enter a trade, which is subject to licensing, unless he possesses a licence, yet it seems to me, speaking with respect, that there is a danger of fallacy involved in treating a licence as if it were a reversed prohibition. For the grant of the Fundamental Right of freedom to conduct lawful trades in itself connotes that there is advantage to be gained by granting such a liberty to individual citizens, not only because it tends to produce profit and a livelihood for such citizens, but also because it is to the advantage of the community in general. Therefore, I feel no hesitation in expressing the opinion that the power given to the State to regulate a trade by a licensing system is one which is to be exercised, not for the curtailment of trade or for restricting the initiative and liberty of action which persons engaged in trade must necessarily be allowed, if they are too make their livelihood under conditions of free enterprise, but for the advancement of the trade and its better organiza tion, for the mutual benefit of those engaged in it as well as the community at large, I decline to allow that the systematic domination by the State of every action which a ship owner might wish to take in relation to his ship for the purpose of its profitable employment, can possibly fall within the mean ing of the expression "regulation by a licensing system" occurring in the first proviso to Article

12. Regulation of trades and professions by statutory instru ments is an institution of long standing. It seems to me only reasonable to apply to the above‑mentioned proviso the same meaning in which such regulation is commonly understood. A simple, and in my opinion, sufficient statement of that meaning will be found in an authoritative book of legal reference, which I have already mentioned, namely Halsbury's Laws of England Volume VII of the Hailsham Edition contains a monograph on Contract and in Part IV, section 3 has a subject‑heading which reads as follows :‑

"Statutory Regulation of Professions and Trades." The opening sentence contains a statement which in my opinion sufficiently indicates the meaning of the subject-heading. It reads as follows :‑

"Many professions, trades and businesses are regulated by statute, and subject to certain statutory restrictions as to the persons by whom and the manner in which they may be exercised or carried on." A licensing system applicable to shipping which falls precisely within the above definition is provided by the Merchant Shipping Act, 1923, when read with the Merchant Shipping Acts in the United Kingdom. These voluminous statutes, which contain between them more than 1000 sections, make provision for matters such as these viz. the registration of ships the minimum qualified staff which an ocean‑going ship must possess and the nature of the necessary qualifica tions; the conditions under which seamen may be engaged and their wages paid; the maintenance of log books; the require ment that passengers‑carrying steamships should have a certificate of survey; special requirements which passengers- ships and pilgrim ships must satisfy before they can be allowed to put to sea ; what equipment must be carried for prevention of collisions, for life‑saving in emergency, to prevent over loading, to maintain radio communication while at sea, to communicate with other ships or with port authorities by means of signals, and a great many matters of the like nature. These provisions lay down what are the conditions which a ship must satisfy as to personal and equipment before it can be permitted to engage in the different branches of the shipping trade; there are also special provisions relating to certain kinds of trade such as the loading of timber and grain and dangerous goods. It seems to me that these are matters which are strictly within the expression "statutory restrictions as to the persons by whom and the manner in which" the trade of shipping may be carried on. As to the actual processes of trade, that is to say the determination of what voyages the ship is to make, and what paying loads shall be carried of passengers or cargo, on which routes, and what rates shall be charged etc., the Merchant Shipping Act leaves the discretion of the owner entirely unfettered. It is in my opinion entirely true to say that the Merchant Shipping Act regulates the trade of shipping by a licensing system, without interfering in the conduct of that trade. It lays down the conditions requisite for entry into the trade and certain other conditions as to the manner in which the trade shall be carried on, and goes no further. The further steps which the Control of Shipping Act takes are, in my opinion, clearly out side the proper scope of regulation are by a licensing system. The same result may also be reached by a process of pure construction of Article 12, namely, of the provisions in the main section relating to trade when read with the first proviso. As has already been remarked, the fundamental right of freedom to conduct any lawful trade has been given by the citizens of Pakistan to themselves and may be regarded as an essential condition of their relationship among themselves, and with the State. The State has been directed inter alia by Article 29 of the Constitution to "provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood . . . " Trade is a form of livelihood which has received particular notice and protection in the Constitution under Article 12, and it is therefore, only reasonable that the power of the State to regulate a trade by means of a licensing system should be construed in the light of the duty imposed upon the State by Article 29 to provide for all citizens facilities for adequate livelihood. It is also a general duty imposed upon the State that it shall endeavour "to secure the well‑being of the people" and as has been seen above under conditions of free enterprise, the well‑being of the people requires that the conduct of trade carried on by individuals should not be interfered with so long as it is being lawfully carried on. If the proviso to Article 12 be held to mean what the learned Attorney‑General contends for, a result might follow which may be expressed somewhat in the following manner. The people of Pakistan first declare that those of them who wish to engage in trade, or are engaged in trade shall be free to enter or continue in their trade and to conduct that trade according to their discretion and choice, so long as it is lawful. In the next breath. the people of Pakistan proceed to say that the State, namely the Executive, to which they entrust the power vested in themselves, to be exercised for the advancement and well‑being of the nation, may, in the guise of a licensing system, interfere in the minutest detail with every process and practice which any citizen‑trader of Pakistan may be required to perform or follow in the conduct of his trade. The freedom which the citizens had guaranteed to themselves is thus placed entirely at the disposal of the Executive, to respect or destroy as it pleases. Manifestly, this is an interpretation which cannot be sustained. The people of Pakistan cannot be thought to have declared a Fundamental Right only to provide immediately after for its destruction by the Executive authority at its unrestrained discretion. Therefore, it is necessary in interpreting Article 12 that the substantial Fundamental Right of freedom of lawful trade should be preserved, in the push‑and‑pull" of interpretation, as against the powers vested in the Executive. As has already been pointed out above, the Executive was enjoined in clear terms to act for the well‑being of the people and so as to provide them with facilities to earn adequate livelihood for themselves, e.g., by conducting lawful trade according to their discretion and choice, as befits an economy based on the principle of free enterprise. Moreover, one of the plainest rules of statutory interpre tation is that a proviso is to be regarded as something which excepts a particular case from a general principle. The effect of a proviso is to except something out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it. As is said in Craies on Statute Law :‑

"The natural presumption is that, but for the proviso, the enacting part of the section would have included in it the subject‑matter of the proviso." Applying this principle, it seems perfectly clear that if the first proviso were deleted, it might be open to ‑the subject to demand that even such a measure as beneficial regulation of a trade for the greater advancement of the trade itself as well as for the public good, was not competent to the State. From that position, it is a very long way to the position taken on behalf of the State in the present case, namely that the proviso enables the State by the method of introducing a licensing system to control every action of a trader in respect of the conduct of his trade. What is contended for appears to be that the first proviso is repugnant to the main portion of the Article. Such a view would in my opinion be obnoxious to every principle applicable to the interpretation of consti tutional documents expressly preserving the rights of the sovereign people. In the ordinary law of interpretation, when a .proviso is directly repugnant to the purview, the proviso stands and acts as a repeal of the purview "because it speaks the last intention of the maker." Yet in Craies on Statute Law the opinion is expressed that in such a case:‑- "the sound interpretation and meaning of the statute on a view of the enacting clause, saving clauses and proviso, taken and construed together are to prevail. If the principal object of the Act can be accomplished and stand under the restriction of the saving clause or proviso, the same is not to be held void for repugnancy." It follows, therefore, that the power of regulating by a licens ing system is not to be regarded as co‑extensive with the power of control secured to a tradesman in respect of the implements and equipment of his trade and every operation that is required by the procedure of his trade. In principle also, the words of a proviso are to be construed strictly and confined to the special case which its words enact ; it would be wrong to construe those words as being co‑extensive with those used in the purview, particularly where the effect might be of bringing about a repeal of the purview. Therefore, it seems to me, that it is incumbent upon a Court to interpret the words of the first proviso to Article 12 in a limited sense, in contrast with the plenary sense in which the words of the main portion of the Article are to be understood. In my opinion, that limited sense is adequately expressed in the extract which I have cited above from Halsbury's Laws of England in relation to the Statutory Regulation of Professions and Trades. Upon this view, and if there were no other provision in the Constitution under which validity might be claimed for the impugned Act the provisions of Article 4 of the Constitution would be sufficient to invalidate that Act. The first sub section of Article 4 provides that :‑-- "Any existing law, or any custom or usage having the force of law, in so far as it is inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void." But, with reference to the impugned Act a strong argument can be advanced to the effect that it is valid under Article 11, for although it acts as a restriction upon the right of a citizen to hold his property, in the sense of having the use of that property for earning his livelihood, 5 et these restrictions are "reasonable restrictions imposed by law in the public interest :" The learned Attorney‑General emphasised, very rightly, the extreme importance which attaches to the maintenance of sea communications between the two wings of Pakistan. He stressed the fact that from the every inception of the country, it has been passing through conditions of stress in an economic sense in relation to supplies and services and also in other senses by no means less important to the security and welfare of the State. Land communications being impossible and communication by air being necessarily limited in scope, the necessity of maintaining continuous communication by sea with the aid of ships, assumed paramount importance, to the extent of being linked up with the security and stability of the State. It is natural therefore that the Executive authorities should feel the necessity of arming themselves with powers of control over ocean‑going ships registered in Pakistan as constituting the primary means of sea communica tion available to the State. In other words it is in the public interest that the State should, under the existing conditions, have the power to require that every ship registered in Pakistan should be available upon demand to meet the urgency of any situation that may arise, requiring immediate transport by sea for the carriage of goods or equipment between the two wings of Pakistan. The petitioners have placed before the Court, in the form of a printed paper‑book a great deal of material in the shape of correspondence which has passed between themselves and the Shipping Authority, from which it is immediately apparent how multifarious are the difficulties with which the executive authorities are confronted in meeting the requirements in respect of sea communications between the two wings. There are references to pressure on the coast for cargo space and since 70 per cent. of cargo space in ships making voyages between the two wings is reserved for Government or Government controlled cargo, it becomes obvious that the available facilities were being found in adequate for the need at that time. It is not necessary to enlarge upon the unfortunate consequences which may follow even on temporary shortages of supplies of goods in one wing which can only be supplied from the other wing, or from abroad, and the grave danger which may follow if goods and equipment which are required for the use of the Central and Provincial Governments cannot be delivered in time for lack of shipping space. The total number of Pakistan registered ships available for maintaining these communications is only

20. Indications exist of the difficulties which have to be experienced in loading and unloading ships at the ports of Chittagong and Chalna. These difficulties result in delay in the operation of the ships, which can only be made good by utilizing more ships. There is a document on the record issued by the Shipping Authority which prescribes 6 months as the limit of time for which a Pakistan registered ship may be chartered for voyages outside the coasting trade, and this is subject to the condition that the ship should always be available to return to Pakistan within three months in case any emergency is declared, and within 45 days in the event of war being declared. A "reasonable restriction" in the sense of Article 11 is one which is Imposed with due regard to the public require ment which it is designed to meet. Anything which is arbitrary or excessive will of course be outside the bounds of reasons in the relevant regard, but in considering the dis advantage imposed upon the subject in relation to the advantage which the public derives, it is necessary that the Court should have a clear appreciation of the public need which is to be met and where the statute prescribes a restraint upon the individual, the Court should consider whether it is a reasonable restraint, in the sense of not bearing exces sively on the subject and at the same time being the minimum that is required to preserve the public interest. Looking at the matter in this light, when I ask myself what are the minimum steps which the State should take, in relation to the movements of Pakistan registered ships, in order that the public interest which I have indicated above should be adequately safeguarded, I can find no escape from the conclusion that the State must keep itself informed of every movement of each ship registered in Pakistan, when the ship is engaged outside the inter‑wing trade. Since the necessity for extra cargo space may arise at any time, I consider it to be reasonable that the State should be equipped to meet such necessities out of its own resources, that is to say out of the ships registered in Pakistan, within the shortest space of time, and it cannot do so unless it has complete information of the whereabouts of each ship registered in Pakistan. Therefore, I consider that the requirement of a permit under section 3 of the Control of Shipping Act which is impugned by the petitioners, constitutes a reasonable restriction imposed in the public interest, and is therefore valid. I express no opinion regarding any other of the restric tions which are applicable to the trade under that Act. In the light of what I have said above, the argument that the section 3 violates the Constitution because it confers an unguided and naked power upon the Shipping Authority, loses all its force. I construe section 3 as a measure designed to obtain information and thereby secure certain controls upon Pakistan registered ships, which are essential for the due performance of the State's duty to maintain continuous sea communications between the two wings of Pakistan. There is interference with the right of ship‑owners to have their property namely, their ships, to their own profitable use, but the interference is such as is necessary in the larger interest of the State. Moreover, it seems to me obvious that to provide words of guidance for the Shipping Authority, in relation to the exercise of its powers under section 3, which might be adequate to meet the varying exigencies of a system of sea communication between the two wings is a practical impossibility. It arises out of the circumstance that each case in which a permit is sought has to be examined in relation to the existing conditions and requirements, of Government as well as private interests, providing also for the risk of an emergency arising which may require the immediate return of the vessel in question to a Pakistan port. No statute can possibly be worded so comprehensively as to provide for every possible contingency that might arise in relation to the large complex of relevant circumstances to be considered in each such case. Therefore, it seems to me that reference to Article 5 of the Constitution is not really relevant in the present case. It cannot be said that by leaving discretion to the Shipping Authority, he is given the position of being a law unto himself in the sense that he can decide for himself in what conditions he will grant a permit or, as the case may be, refuse a permit. There is no question of legislation at all since each case has to be considered ad hoc in relation to the circumstances existing when it arises in the light of the requirements of the State, and in compliance with the policy laid down. That degree of discretion is vested in the Executive inherently as a necessary condition of its existence. For these reasons I would dismiss this petition. The costs should follow the event. A. H. Petition dismissed.