P L D 1959 (W. P.) Karachi 232
Before Qadeeruddin Ahmed, J
MUHAMMADI STEAMSHIP Co. LTD.‑Plaintiff
FEDERATION OF PAKISTAN and others‑Defendants
Suit No. 525 of 1953, decided on 5th May, 1958.
S. Nasiruddin for Plaintiff.
A. S. Farooqui for Defendants.
Muhammadi Steamship Company Limited has filed this suit for the recovery of Rs. 4,82,065‑4‑0 as damages from the Government of Pakistan and Messrs A. A. Said, Con troller of Shipping and D. R. Kabraji, 1st Assistant Traffic Manager, Karachi Port Trust. The case of the plaintiff, in outline, is that it applied by Exh. 7 to defendant 2 for permission to carry rapeseed and rapeseed oil on one of its vessels, namely S. S. ” A1 Murtaza Ali”. This application was made on the 16th of July 1951, and while it was under consideration, defendant 2 called a meeting of the Shipping Co‑ordination Committee and invited the representatives of the Pakistani Shipping Companies to attend it. This meeting was held on the 1st of August, 1951. According to the plaintiff permission was given to it at the meeting to carry full cargo of rapeseed and rapeseed oil on S. S. ” Al Murtaza Ali “. In pursuance of this permission the plaintiff is said to have made arrange ments for securing and transporting this cargo, but before the ship could sail, the plaintiff received a communication, Exh. 9, in the afternoon of 15th August, 1951 from the Ministry of Commerce to the effect that the permission granted to rapeseed and rapeseed oil had been superseded and that this ship was earmarked, due to an emergency, for carrying foodgrains to Chittagong on behalf of the Food Ministry. The plaintiff was compelled to carry out these orders, because defendant 3 stopped the loading of rapeseed and rapeseed oil from 1 p.m. on the 20th of August, 1951 intimation of this order was given to the plaintiff by defendant 3 through his latter Exh. 10, dated the 20th of August 1951. The application of the plaintiff for permission to carry rapeseed and rapeseed oil and the alleged permission to do so are said to have been disregarded by defendants 1 and 2 because the situation was changed by the issue of a Press Note, Exh. 39, on the 16th of August, 1951, and communicated to. the plaintiff on the 18th of August 1951. According to this Press Note a whole‑time Controller of Shipping was appointed, and with his appointment licensing of shipping space was introduced from the 20th of August, 1951. The plaintiff applied for a licence, though, according to the plaint, it did so under protest. A licence was granted to the plaintiff on the 4th of September 1951 by which a direction was given to the plaintiff to carry 4,000 tons of Government foodgrains and such cargo as edible seed and oil as was either loaded in S. S. ” A1 Murtaza Ali” prior to the 20th of August 1951 or had reached the Karachi Port Trust area in wagons by 1 p.m. on that day. This licence is Exh. 14. It was subse quently .4mended on the 6th of September, 1951 by a letter, Exh. 16, so as to give a further direction to the plaintiff to carry 222 tons of defence stores, railway stores and currency notes. The plaintiff loaded the ship as directed by the Con troller of Shipping but it was found that there was still space in the ship for carrying 1,000 tons more of cargo. The plaintiff applied for permission to carry additional cargo in order to fill up this space, but the permission was not granted. The plaintiff’s case is that the ship could’ sail on the 25th of August, 1951, but its departure was delayed, because of the orders issued by the Controller of Shipping, by 18 days ; that is to say, up to the 11th of September 1951. Para 14 of the plaint contains the reasons why, according to the plaintiff, the orders issued to it were illegal. Para. 15 of the plaint contains the details of damages alleged to have been suffered by the plaintiff.
Defendant 3 has submitted an independent written statement. The main defence of this defendant is that he played no part in his personal capacity, and that the plaint discloses no cause of action against him. The suit has been, by consent of the parties, dismissed with costs against him on 5‑7‑1954.
Defendants 1 and 2 have submitted a joint written state ment in which defendant 2 has pointed out that he ceased to be the Controller of Shipping from the 11th of July, 1952. The main defence of both defendants is that no permission was granted to the plaintiff on the 1st of August, 1951 to carry rape seed and rapeseed oil on the ship ” Al Murtaza Ali”. The object of the meeting held on this date was an informal dis cussion of an exploratory character, no decision could be taken at this meeting, and though a programme for transportation of cargo was outlined at it, yet this could not be said to be a permission to carry rapeseed and rapeseed oil. The plaintiff was kept informed from time to time that its ship was later earmarked for carrying foodgrains to East Pakistan. It had become necessary for the plaintiff after the 20th of August, 1951, to obtain a licence, and it did make an application and carried on correspondence in a threatening manner with full knowledge of want of permission in order to coerce the authorities into yielding to its unjust demands. A licence was issued to the plaintiff on the 22nd of August, 1951, and it was amended twice afterwards at the request of the plaintiff itself. The concessions asked for by the plaintiff were granted and accepted by it, and yet it kept on complaining against the same acts of the Government. The delay in the departure of the ship is, according to these defendants, the consequence of the plaintiff’s own conduct and they have denied that its departure was delayed by 18 days, or on account of any illegal orders. They have pleaded that no action for damages is maintainable against them. They have also denied the validity of the notice given to the Government under section 80 of the Code of Civil Procedure.
On the pleading of the parties, 13 issues were framed, which are as follows :‑
(1) Was the plaintiff given permission to carry full cargo of rapeseed and rapeseed oil per S. S. ” Al Murtaza Ali ” from Karachi to Chittagong ?
(2) Was such a permission superseded as the said ship had been earmarked by the Controller of Shipping for carrying foodgrains to Chittagong ? If so, what is its effect ?
(3) Was any cargo of rapeseed and rapeseed oil illegally stopped from being loaded on S. S. ” Al Murtaza Ali ” ?
(4) What was the effect of the Notification No. 366/105/51, dated 17th August, 1951 ?
(5) Was the plaintiff not bound to apply for the issue of a licence ?
(6) What was the effect of the amendment of the licences and whether the defendants did not have the authority to do so’?
(7) Were any of the orders of the Ministry of Commerce and the Controller of Shipping illegal for reasons stated in para. 14 of the plaint ?
(8) Has the plaintiff suffered damages as alleged in para. 15 of the plaint ?
(9) Were these caused by the alleged illegal and delayed acts of the defendants ?
(10) Are the defendants or any of them liable in damages for having passed the orders as they did ?
(11) Does an action for damages lie on the ground that there was delay in passing any of the orders
(12) Was the notice under section 80 valid ?
(13) To what relief, if any, is the plaintiff entitled ?
The parties have led their evidence. The plaintiff has produced 5 witnesses and the defendants have produced one witness only. Most of the documents which were submitted by the parties have been exhibited by consent.
It appears to me that there are only four material questions in this suit. The first is whether the Controller of Shipping had the authority to order the plaintiff to carry specified cargo. The second is whether any damages have been suffered by the plaintiff on account of the conduct of the defendants. The third is the liability of the defendants. The fourth is whether the claim is barred by time. Issues No. 1 to 6 and 7 and 9 capitulate various aspects of the first question. Issue No. 8 covers the field of the second question. Issues No. 10 and 11 embody the third question. The fourth question was raised during arguments. Issue No. 12 arises from a specific plea raised by the defendants in paragraph 17 of their written statement. Issue No. 13 is of a general character.
Issue No. 1.
‑The parties agree that a meeting was called on the 1st of August, 1951 by the Controller of Shipping in which there were representatives of a few Ministries and of the Pakistani Shipping Companies. The plaintiff contends that it was a meeting of the Shipping Co‑ordination Committee, but the defendants have denied it. The Control of Shipping Act, 1947, which was in force at that time, does not contain any reference to the Shipping Co‑ordination Committee, nor does it contain any reference to the Controller of Shipping. Clause (f) of section 2 of the Shipping Act defines ” Shipping Authority ” as follows : ‑‑
“`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 “.
Defendant 2 was appointed as the Shipping. Authority on the 30th of March, 1948 by a notification which is Exh. 54. Another notification, Exh. 40, dated the 17th of May, 1951 shows that he was appointed the Controller of Shipping. Both of these appointments purport to have been made under the Shipping Act. Mr. Saud‑ur‑Rehman, D. W. 1, has explained that defendant 2 was a Deputy Secretary in the Ministry of Commerce as well as the ex officio Controller of Shipping. He occupied the position of the Shipping Authority and was designated the Controller of Shipping. There seems to be nothing illegal in this because his appointment on both occasions was made under section 2 (f) of the Control of Shipping Act, 1947. The difference in the nomenclature is immaterial. There is no provision in the Act under which a Committee could be appointed to perform these ‑ functions. A Board is nominated under the Rules but its function is only to advise the Govern ment regarding the rates which are fixed under section 6 of the Act. Mr. Saud‑ur‑Rehman, D. W. 1, has explained that the Shipping Co‑ordination Committee was constituted in 1948 under the orders of the Government and ship owners were neither members of this Committee nor were they ever invited to take part in its deliberations. The witness has been acting as the Secretary of this Committee, and according to him, a confidential record of its proceedings was kept and its minutes were not circulated amongst the ship owners. It appears to me that the meeting which was held on the 1st of August, 1951 was not a meeting of the Shipping Co‑ordination Committee but was called by defendant 2 in order to consult the Pakistani ship owners regarding the allocation of space for transportation of cargo. The reason for holding these consultations is stated by Mr. Saud‑ur‑Rehman to be that different kinds of cargo had to be carried and the ship owners had to be consulted to find out whether the cargo allocated to a ship could be carried in it or not. It is possible that the views of the ship owners were respected by the Government and therefore the ship owners received an impression that the consultations were held on demo cratic principles and that it was their business like as well as gentlemanly co‑operation with the Government which alone prompted them to participate in the deliberations and to act according to the programmes chalked out at them. Khwaja Abdul Moid, P. W. 1 has stated
” If the Government desired to issue any directions for loading of any particular goods, then it could do so, but it was open to the Pakistani Shipping Companies to carry out the directions or not “.
Law had fallen so far away into the background that it was forgotten. This forgetfulness is responsible for the following statement of P. W. 1 in his cross‑examination :‑
” Upto the 20th of August, 1951, the office did not consider itself legally bound by the directions issued by the Controller of Shipping. His wishes were carried out for purposes of offering co‑operation to the Government. It is true that the reason why we co‑operated with the Government was not only that the Shipping Companies wanted to behave as good citizens but also because the Government was ‘ a big customer of theirs and they could not whish to displease it “.
Mr. Cawasjee of the East & West Shipping Company has made a similar statement as P. W. 4.
This view of the witnesses may be excusable but in so far as these witnesses have stated that the meeting held on the 1st of August, 1951 decided that S. S. “Al Murtaza Ali” was to carry rapeseed and rapeseed oil, it must be said that the views have not been too accurately expressed. The programme drawn up at the meeting was never considered to be anything conclusive. The plaintiff has produced a copy of the programme, Exh. 41‑A, which was chalked out at the meeting. Mr. Cawasjee has also produced copies of it. They are Exh. 42‑A and Exh. 51. Both of them show that S. S. ” Al Murtaza Ali ” was to carry on the 28th of August, 1951, rapeseed in the amount of tons 8,500 to 9,000. Rapeseed oil is not mentioned in this programme. If this was final allocation of cargo, then there was no need for the plaintiff to ask questions from the Government on this subject, but Exh. 25 shows that the plaintiff wrote to the defendant 2 on the 2nd of August, 1951 as follows :‑
“We would refer to our letter of the 16th July 1951 in connection with the above‑mentioned subject and would request your confirmation whether S. S. Al Murtaza Ali will be permitted to carry rapeseed and rapeseed oil from Karachi to Chittagong when the vessel next loads at this Port about the 10th instant.
First the vessel be permitted to carry the rapeseed and rapeseed oil, then advise us whether allocation will be made by the Government or by the Company “.
The uncertainty and the solicitude which is patent on the tenor of this letter is a convincing refutation of the allegation that the programme chalked out on the 1st of August 1951 was final. I, therefore, decide issue No. 1 against the plaintiff.
Issue No. 2.
‑This issue is decided automatically by the decision of issue No. 1. There was no permission, and therefore there is no question of its supersession and no question of the effect of the supersession.
Issues No. 4 and 5.
‑The learned counsel of the plaintiff has stated that the basis of these issues is the permission of the 1st of August, 1951 to carry rapeseed. In view of my decision that no permission was granted on that day, the basis of these issues disappears and the conclusion is that the plaintiff was bound to apply for a licence after the‑‑ rules were framed under section 9 (1) of the Control of Shipping Act of 1947 by the notification gazetted on the 17th of August, 1951. I may add that licenses were necessary in terms of section 3 and section 3‑A of the Control of Shipping Act, 1947, inde pendently of this notification.
Issues No. 3, 6 and 7.‑
These issues have been argued by the learned counsel of the plaintiff on the assumption that defendant 2 could issue or refuse to issue a licence under subsection 1 of section 3‑A of the Shipping Act, but had no authority to order what kind and quantity of cargo it was bound to carry. His contention is that section 3‑A deals with subject‑matter which is different from the subject‑matter of section 3 of the Act. Licences were necessary under section 3 to enable ships registered in Pakistan to go to sea, but these licences did not authorise any ship to engage in ` coasting trade ‘; for which purpose licences had to be taken under sub section 1 of section 3‑A. The Shipping Authority or the Controller of Shipping could give directions with regard to the cargo which could be carried under subsection (1) of section 5 of the Act in respect of those ships only to which licences were granted under section 3. Similar directions could be given under subsection (2) of section 5 to the ships which were registered outside Pakistan and which were about to proceed from a port or place in Pakistan to any port or place in the Indo‑Pakistan Sub‑Continent. But there is no provision, according to the counsel of the plaintiff In the Control of Shipping Act, 1947, which authorises the Controller of Shipping to issue such directions with respect to those ships which do not fall within these two categories S. S. ” Al Murtaza Ali ” was granted a licence to be engaged in ” Coasting trade ” as defined in clause (a) of section 2 of the Act. This licence could be issued ‘ under section 3‑A of the Act only and therefore the licence which was issued to this ship was really a licence under section 3‑A and a ship with respect to which a licence is issued under section 3‑A does not fall within the categories mentioned in subsections (1) and (2) of section 5, and therefore the Controller of Shipping had no authority to issue directions regarding the kind or quantity of cargo which it could carry. In order to be able to understand this argument more clearly it is necessary to reproduce here the relevant provisions of law ; they are clause (a) of section 2, subsections (1), (2) and (4) of section 3, sub section (1) of section 3‑A and section 5 of the Act. They are as follows :‑
” 2. (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”.
” 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 tray be either a general licence or a specified voyage licence.
(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, pr while in such waters or engaged in such trades or on such voyages, as may be specified.”
” 3‑A.‑‑(1) No, ship shall engage in coasting trade except under a valid licence granted by a Shipping Authority under this section.”
” 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.
(2) In cases‑‑
(a) where a Shipping Authority has power to give direction 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.”
The licence which was issued to the plaintiff for carrying goods from Karachi to Chittagong, Exh. 14, purports to be for a specified voyage under section 3 of the Control of Shipping Act, 1947. The learned counsel of the plaintiff has contended that this licence authorised the plaintiff’ to carry goods by water between Karachi, which is a port in Pakistan, and Chittagong, which is a port in the Indo‑Pakistan sub‑continent. Therefore it was .a licence for being engaged in ` coasting trade ‘. It ought to have been issued under section 3‑A of the Shipping Act and if a wrong section has been quoted on it and wrong form has be‑.n used for issuing it, still it remains in reality a licence under the proper section, viz. section 3‑A of the Act and as such the powers conferred on the Controller of Shipping by section 5 were not exercisable in regard to it.
Mr. Farooqui, the learned counsel of the defendants, has pointed out that section 3‑A was inserted in the Shipping Act in 1950 while section 3 was enacted from the beginning in 1947. Section 3‑A deals with coasting trade, but this trade was included in the scope of subsection (4) of section 3 before section 3‑A was enacted. Under subsection (4) the Shipping Authority could impose conditions with respect to the trades in which the ships might engage and on the voyages which they might undertake. These were ample powers for permitting, refusing and controlling coasting trade. But section 3 applied to those ships only which were registered in Pakistan and therefore these powers could not be utilised with respect to foreign ships. The legislature wanted to remove this lacuna and therefore enacted section 3‑A in order to bring foreign ships under the Control of the Shipping Authority. He referred to the statement of the objects for introducing the Act by which section 3‑A was enacted and argued that this section applies to foreign ships only. By advancing this argument he wanted to show that licenses granted under section 3 could include the permission to engage in coasting trade and therefore the licence given for coasting trade need not necessarily be under section 3‑A. Thus the licence which was issued to the plaintiff in respect of S. S. ” Al Murtaza Ali ” was rightly issued under section 3 and fell within the category of the licenses mentioned in subsection (1) of section 5 and therefore the Controller of Shipping could issue directions with regard to the kind and quantity of the cargo which could be carried on it.
It is true that section 3 of the Shipping Act as originally enacted was wide enough to confer authority on the Controller of Shipping to deal with coasting trade by ships registered in Pakistan. But the scope of this section was clearly curtailed by the enactment of subsection (1) of section 3‑A, which speaks of C all ships, whether registered in‑Pakistan or not, and lays down that ‘no ship’ can engage in coasting trade except under a licence granted under this section. The necessity of obtaining a licence for coasting trade under section 3‑A is irrespective of any licence which may be held for a . ship under section 3. No exception has been made in favour of those ships in respect of which a licence might have been issued under section 3. The argument of Mr. Farooqui that section 3‑A does not apply to ships registered in Pakistan does violence to the language of subsection (1) of section 3‑A. It is true that the legislature enacted section 3‑A to empower, the Shipping Authority to control coasting trade by foreign ships, but it is not true that this was the only purpose with which this section was a acted. The other object, as disclosed by the language of subsection (1) of section AA itself, clearly was to separate the subject of coasting trade from other kinds of voyages and trades. Mr. Farooqui seems to suggest that there ought to have been an amendment of section 3 to indicate that its scope had been curtailed by the enactment of section 3‑A, if such curtailment was really meant. But the reply to this sugges tion is that the language of subsection (1) of section 3‑A is emphatic enough to remove all doubts that ” no ship ” holding any other licence can engage in coasting trade without a licence ” under this section “.
I should note here an additional argument of Mr. Farooqui. He has referred to the following provision of section 4 :‑
” . . . . . 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 of . . . . . a valid licence granted under this Act in respect of the ship.”
He contended that the reference to ” a ship registered in Pakistan or a ship engaged in coasting trade ” proves that a ship engaged in coasting trade is different from a ship registered in Pakistan. It is true that two classes of ships one registered in Pakistan and the other engaged in coasting trade have been recognised in this provision of law. It is, however, not necessarily true that these classes are not overlapping in some respects. A ship engaged in coasting trade may or may not be a ship registered in Pakistan. The two classes have been mentioned because the differentia is the place of registration in Pakistan for any sea‑going purpose on the one hand and engagement in coasting trade on the other hand. This classification supports the view that all ships which are registered in Pakistan fall in one category and are governed by section 3 but those which are engaged in coasting trade form a class by themselves. Mr. Faruqui has met the situation created by this reasoning by an incisive argument. He contended that if the classification overlaps then sea‑going purposes include coasting trade. In other words, coasting trade cannot be under taken without a licence under section 3 because in terms of subsection (1) of section 3, no ship can be ” taken to sea” without a licence under this section. This being so, the licence granted to S. S. ” A1 Murtaza Ali ” must be taken to be a licence under section 3 as well as under section 3‑A. If it is a licence under section 3 for any sea‑going purpose then it is governed by sub section (l) of section 5 and as such the Shipping Authority could, from time to time, order what kind and quantity of cargo could be carried on it. I agree with this contention of the learned counsel and decide issues No. 3, 6 and 7 against the plaintiff. I may mention in anticipation of the discussion under issues 10 and I I that the power to stop the loading of a ship against the directions issued under section 5 or to enforce sections 3 and 3‑A are incidental and are necessarily implied in the law. The order to stop loading was not made in exercise of the Sovereign powers of the State but in virtue of this provisions of Municipal Law.
Issue No. 9.‑
S. S. “Al Murtaza Ali” apparently came into the harbour of Karachi on the 10th of August, 1951. According to khwaja Abdul Moid, P. W. 1, it could be fully loaded in about two weeks’ time. If, therefore, its loading was taken up at once on its arrival, it might have left the harbour on the 25th of August, 1951. The plaintiff’s case is that it was scheduled to sail on this date but was delayed by 18 days’ time. I am inclined to believe that it was the desire and as the plan of the plaintiff that it should leave the Port on the 25th August, but I do not think that the circumstances and the general efficiency of the scheme of things was such as to induce one to take it that the departure was to take place strictly on the 25th. Rehmatullah, P. W. 5 was questioned on these lines. He said:
” The departure of the ships is sometimes delayed but this never happens without a good reason. I do not know for what reasons the departure of the ships is delayed”.
According to Mr. Moid, an important officer of the plaintiff, the ship was delayed by about 15 days only. I should mention that he made his statement in Court with the help of his notes. Imperfections of various kinds on the managerial side of the plaintiff are disclosed in the statements made on behalf of the plaintiff in its correspondence with the defendants. In paragraph I of the letter, Exh. 7, it is stated that S. S. “Al Murtaza Ali” was due to arrive at Karachi for loading during the first 10 days of August. Actually it came on the last of these 10 days of August. A margin of 10 days was not deemed to be too big. in the letter Exh. 8 it is stated that the plaintiff had completed all arrangements to load S. S. “Al Murtaza Ali” from Friday morning which was the 17th of August. If the loading was to commence on the 17th of August then its departure on the 25th was altogether impracticable. The excuse of the plaintiff for late commencement of loading is that correspondence with the defendants was in progress. Some delay might have occurred on account of the hesitation created due to inconclusive cor respondence, but it must be recognised that all the same the plaintiff repeatedly expressed its determination to go ahead with loading on the basis of the alleged permission of the 1st of August 1951 to load and carry rapeseed and rapeseed oil. In the letter Exh. 28 dated the 18th of August, 1951 it has stated :‑
” We have been obliged in order to avoid any further delay and expense to proceed with the pre‑arranged programme in accordance with the joint conference held on the 1st instant and load the cargo as previously booked.”
If the cargo had been previously booked and if arrangements for loading had been completed, then the quantities of rapeseed and rapeseed oil which were loaded or were waiting to be loaded could not be only Tons 3,595 on the 4th of September, 1951, as is disclosed by one of the plaintiff’s letters, viz., Exh. 17. On the 4th of September the plaintiff received a licence as desired by it. Its important terms were as follows :‑
” The ship is allocated 4000 tons of Government food‑grains and such public cargo of edible seeds, oil etc. as was either loaded in her prior to 20th August 1951 or had reached the Karachi Port Trust area in wagons by 1 p.m. on that date.”
But it did not possess enough cargo to fully load the available space of the ship with rapeseed or rapeseed oil and therefore applied for permission to carry Defence stores. This permission was given on the 6th of September, 1951, but it is a fact that the additional load too was not sufficient and there was more vacant space in the ship for another load of 1000 tons. The: plaintiff’ applied for permission to carry the additional cargo to Colombo. This permission was not granted, and it is explained by defendants 1 and 2 in paragraph 10 of their written statement that it could not be granted because additional loading would have further delayed the departure of the ship. If the calcula tions of the plaintiff regarding the completion of arrangements and the readiness of cargo to be loaded were correct, then due to the Government cargo there ought to have been some surplus cargo rather than the existence of a need for 1000 tons more. Moreover, if the ship was allowed to carry this additional cargo and its departure was delayed by say two days more then, on its arrival at Chittagong on 26th of September, 1951, the draft would have decreased, according to Exh. 44, to 21 feet 7 inches which means by another 11 inches. My conclusion in view of the facts of the case therefore is that S. S. “Al Murtaza Ali” might not necessarily have left the harbour of Karachi on the 25th of August, 1951 even if the plaintiff was left to itself. A delay of 4 or 5 days could be expected.
The plaintiff received the desired licence as stated above on the 4th of’ September, 1951. If it had not applied for the con cession of being allowed to carry Defence stores, then it ought to have been able to sail on the 5th of September 1951 particularly because the Government cargo of foodgrains in the amount of 4000 tons was available for loading, according to Exh. 31, from the 22nd of August, 1951. In this view of the situation the total period of delay caused by the conduct of the defendants cannot be said to be more than 6 or 7 days. 1 hold, therefore, that the departure of the ship was delayed on account of the defendants for 7 days.
I have explained above and wish to repeat that the delay was not caused on account of any illegality of the acts of the defendants. It was caused by the negligence and slackness in disposal of the application of the plaintiff which waited for decision from the 6th of July, 1951. The defendants’ counsel has tried to defend this slackness by pointing out that the procedure of a Government office is, as a rule and on account of the nature of things, slower than is suitable to fast and brisk business. His suggestion is all too true, but standards of habitual slackness cannot be upheld when Government officers are to deal with business bodies whose existence can be endangered if the Government Departments adopt the attitude of self‑complacency and justify harms done by them on the plea of their usual speed of work which may or may not be commendable from the Government point of view but portends to be the cause of incalculable harm to the economy of the country if it is not accelerated according to the nature of the duties; entrusted to the Government Departments.
Issue No. 8.
‑The damages alleged to have been suffered by the plaintiff are detailed in para. 15 of the plaint. The main heads under which they are claimed are as follows :‑
(a) Rs. 97,785
for the maintenance of the ship at the rate of Rs. 5,431 per day from 25‑8‑51 to 11‑5-51.
(b) Rs. 15,449
as demurrage for detention of railway wagons for the same period ;
(c) Rs. 1,25,937
for the loss of freight arising from the difference of freight for the carrying of foodgrains and rapeseed.
(d) Rs. 1,18,080
for the loss of freight on account of decrease in the draft.
(e) Rs. 4,673‑13‑0
for extra coal consumed by the ship from the 25th August to the 11th September 1951.
(f) Rs. 8,681‑7‑0
for the additional cost of bunkers con sumed during this period.
(g) Rs. 36,486
for the loss of profit on the basis of the earnings of the previous years.
I may point out that the claim for the amounts mentioned under (b), (f) and (g) fails because demurrage has not been paid by the plaintiff and admittedly the claim of the Port Trust for this amount has become time‑barred. No attempt has been made to prove the extra cost of bunkers. Loss of profit has not been proved because P. W. 5 has stated:‑
” This calculation has been arrived on the basis of annual profit of the Company in other years. The income of the Company in every year during the previous years was not uniform but I cannot say how much it was. The figure of loss of profit (given in the plaint) is the result of the com parison of the profit of the Company in 1951 with the profit of the Company in 1950.”
This is no proof of loss of profit attributable to the action of the defendants. It can be the result of slightly adverse state of business during the year.
Truly speaking, the plaintiff has not cared to pay much attention to the proof of damages. Copies of the original documents on the basis of which the amounts were calculated; were never produced in Court. P. W. 3, an assistant accountant! of the plaintiff, was produced to say that the accounts were: prepared from original books on the basis of calculation made by the accountant of the plaintiff. But the original documents were not in Court nor was the accountant a witness in the case. I therefore disallowed this evidence. The learned counsel of the plaintiff then orally applied to produce original documents which were yet in the office of the plaintiff. The defendants’ counsel rightly objected to it and I did not give the permission because this involved an adjournment of the hearing after 5 years of the institution of the suit and would have opened the door for a series of allegations and counter‑allegations regarding the trust‑worthiness and reliability of the entries in the account books which had all along remained in the possession of the plaintiff.
An amount of Rs. 97,758 was claimed in the plaint on account of the cost of the maintenance of the ship during its detention for 18 days at the rate of 5,431 per day, but P. W. 5 stated that the cost for salaries, food, etc. of the officers and crew of the ship came to about Rs. 5,000 per day only. In cross- examination the witness stated:
” It (plaintiff) obtains receipts against payments and the payments are also entered in the plaintiff Company’s account books.”
No details of the expenditure have been given and there is a difference of Rs. 431 per day between the amount claimed in the plaint and stated by the witness. This evidence is neither satisfactory nor sufficient to prove the expenditure.
Rs. 1,25,937 are alleged to be the loss of freight due to the difference in the freight earned on foodgrains and the freight which the plaintiff would have earned if the same quantity of rapeseed had been carried by it. The freight of rice and maida has been given by P. W. 5 at different figures. There is no proof of the quantities of rice and maida which were carried on the ship excepting what can be gathered from the Cargo Plan, Exh. 43. This plan has been exhibited in the statement of Khwaja Muhammad Moid, P. W. 1. In cross‑examination he said :‑‑
” The Cargo Plan, Exh. 43, is not signed by anybody. It was not prepared‑ by me.”
It purports to be a true copy, the original of which has not been produced. This document is therefore to be excluded from evidence and the result is that the proportion of rice and maida carried on the ship cannot be ascertained. On the other hand, the difference in freight has been calculated by a comparison of the freight earned on foodgrains and the freight which would have been earned if an equal quantity of rapeseed had been carried. Actually, the plaintiff wanted to carry rapeseed as well as rapeseed oil on the ship. It appears that the freight of rapeseed oil has not been taken into consideration because it was comparatively lower than the freight of the rapeseed. 1f the plaintiff wanted to carry rapeseed oil also on the ship, then it was improper to leave this article out of consideration. There is no evidence on record of the proportion of rapeseed and rapeseed oil which was carried on the ship except what can be ascertained with the help of Exh. 43. This document having been excluded from evidence, it is not possible to tell in what pro portion and quantities these articles were carried. In this connection, the statement of P. W. 5 is worthy of note :‑
” I do not know how much rapeseed and rapeseed oil had been received by the plaintiff’s Company for transportation from Karachi to Chittagong. The loss in freight mentioned by me is based on the difference between the freight if the entire ship was loaded with rapeseed and rapeseed oil and the freight if the entire ship was loaded with foodgrains . . . . . The freight of rapeseed oil has not been taken into account. I have no knowledge whether the ship had to carry rapeseed oil also. I do not even know that the freight of rapeseed oil was higher or lower than the rate of rapeseed.”
Moreover this claim is not well founded because the plaintiff had expressed its willingness by its letter Exh. 31 to carry 4000 tons of foodgrains and only this amount was given to it by the Government for transportation.
The result is that the claim of this loss is neither proved, not is it justified.
Rs. 1,18,080 have been claimed on account of loss of freight on 1,845 tons of rapeseed at the rate of Rs. 64 per ton and it is alleged that this amount of freight could not be earned by the plaintiff because the draft at Chittagong had fallen on account of the delay in the departure of the ship. The fall in the draft according to the plaint was by 39 inches. This calculation is based on the allegation that the ship, if not detained on account of the orders of the defendant, would have sailed on the 25th of August and arrived in Chittagong on the 6th of September 1951. The draft on the latter date, according to Exh. 44, was 25 feet 9 inches, but actually the ship sailed on the 11th of September 1951 and was expected, according to P. W. 1, to arrived in Chittagong on the 24th of September 1951. The draft on this day, according to Exh. 44, was 22 feet 6 inches. This means, and as stated in the plaint, the decrease in draft was by 3 feet 3 inches or 39 inches. There is, however, some miscalculation in this anticipation because the period of the journey according to the originally expected departure and arrival in Chittagong comes to 12 days excluding the date of departure. But the period of the journey from the 11th of September to the 24th of September comes to 13 days excluding the date of departure. The journey could be either of 12 days or 13 days. If it was of 12 days then the ship could arrive in the river of Chittagong on the 23rd of September. On that date, according to Exh. 44, the draft was 21 feet only. If this figure is taken into consideration then there was a fall of 57 inches in the draft on the expected date of arrival. This, however, is not the case of the plaintiff as disclosed in the plaint. If, on the other hand, the period of journey is taken to be of 13 days, then the ship on leaving Karachi on the 25th of August could have reached Chittagong on the 7th of September 1951. On that date, according to Exh. 44, the draft was 24 feet and 4 inches. If the draft on the 7th of September is compared with that on the 24th of September as given in Exh. 44, then the difference between the two is of 24 inches only. These miscalculations show the inaccuracies which are found in the plaintiff’s case, but they are not important for the present purpose because I have held that the ship was not necessarily likely to have sailed on the 25th of August. According to me it might have sailed on any day between the 25th of August and 30th of August. The relevant date, therefore, is the 30th of August and not the 25th of August. If the ship had sailed on the 30th of August and the duration of the journey was 12 days, excluding the date of departure, then the draft on that date, according to Exh. 44, was 24 feet 6 inches. The difference in the draft of this date and of the 24th of September is 24 inches only. I should not omit to note that the f plaintiff has not disclosed in the pleadings or in its evidence the actual date of the arrival of the ship at Chittagong.
P. W. 1 has stated that the formula for loading the ship in relation to the draft is that 48 tons of cargo are loaded to an inch of water. According to this formula the loss of freight on account of the difference of 24 inches to the plaintiff was of 1,152 tons of cargo. The calculation of the difference in the weight of freight however does not help the plaintiff without the calculation of the loss of freight which resulted from it. The cargo which the plaintiff wanted to carry was rapeseed and rapeseed oil. The‑plaintiff has not proved that this cargo was available for loading, nor has it proved the freight of rapeseed oil. As stated above the plaintiff was apparently able to load all the cargo that was available to it and there was still some vacant space left for more cargo. If this is so then the calculation of loss of freight is a mere exercise of imagination. The learned counsel of the defendants has pointed out that decrease in draft does not establish that the plaintiff had not or could not load more cargo on the ship than was warranted by the available draft, because low draft could affect only the entrance of a ship into the harbour of Chittagong and an over‑loaded ship could wait at the entrance and unload the surplus cargo by lighters before entering ,the harbour. In these circumstances, it cannot be said that the plaintiff suffered any loss, of freight on account of the decrease of draft as alleged in the plaint.
Rs. 4,673‑13‑0 have been claimed by the plaintiff on account of the cost of extra coal P. W. 5 has stated that this cost was incurred by the plaintiff. But apart from the bare statement of this witness, there is no other proof. It should be remembered that the plaintiff has claimed about a lac of rupees for the maintenance of the ship without disclosing a satisfactory breakdown of this figure. The consumption of coal should be a part of the maintenance of the ship during its detention. One cannot say why this item has been claimed separately. However it maybe, it cannot be said to have been proved only because P. W. 5 has supported it. The value of the statement of this witness can be judged from the following :‑
“I was informed that I have to appear as a witness in this case only today. I have no personal knowledge of the facts contained in the books of accounts”.
The conclusion of all that has been stated above is that the plaintiff has failed to prove the damages alleged to have been suffered by it. The issue is accordingly decided against the plaintiff.
The carelessness of the plaintiff in alleging and proving the facts necessary for establishing damages is inexcusable in view of the harassment caused to the defendants except on the ground that its main object might not have been to recover money but only to establish that the defendants could not legally issue directions as to the kind and quantity of the cargo to be carried and would be liable for the consequences of issuing such directions. I have held that they could give such directions and now proceed to examine the second contention.
Issues No. 10 and 11.
‑These issues have no importance from the monetary point of view because the plaintiff has failed to prove damages. They have a technical significance only.
The learned counsel of the plaintiff has argued that although the claim is based on a tortious act of defendant 2 yet it arose from the negligent and high‑handed administration of Municipal law involving in it the detention of the plaintiff’s ship for the business transactions of defendant inasmuch as the plaintiff sent on the ship some of its own cargo of foodgrains at com mercial rates and did not have to charter a ship for this purpose. Moreover, according to the counsel the act done by defendant 2 was ordered and ratified by defendant 1 inasmuch as defendant 2 occupied, in the early stages, the dual status of the shipping Authority under the Control of Shipping Act, 1947, as well as of a Deputy Secretary of the Ministry of Commerce. Later on, his acts were confirmed by the same Ministry because Mr. Saudur Rehman, who is D. W. 1 also wrote such letters as Exhs. 9, 34, 35 and 36 in the capacity of an Under Secretary to the Government of Pakistan in the Ministry of Commerce and Education. These orders and ratifications of the actions of defendant 2 bring this case of the plaintiff, according to the counsel, within the well known category of those exceptional cases of damages for tortious acts of Government Officers which can succeed against the Government as well as against the Government servants concerned. He has relied generally on Thomas Easles Rogers v. Rajendro Dutt and others (VIII M I A 103) ; The Collector of Masulipatam v. Caverly Vencata Narrainpal (VIII M I A 529) ; Public Prosecutor v. Kota Sahib of Wandiwash (A I R 1942 Mad. 530) ; Betts v. Receiver for the Metropolitan Police District and Carter Paterson & Co. Ltd. (L R (1932) 2 K B 595) ; Dr. Hari Ram Singh v. Emperor (A I R 1939 F C 43 ) and parti cularly on The Secretary of State for India in Council v. Hari Bhanji (I L R 5 Mad. 273), Addison on Law of Torts. (Edn. V) p. 664 ; Consti tution of India by Shivlal, pages 346 to 353. Lastly he contended that the controversy which has raged in the law Courts during the last century on account of such words as : ” . . . . . . in the like cases as the Secretary of State in Council might have sued or been sued if this Act has not been passed”, which occur in section 176 of the Government of India Act, 1935 and previous Constitutions should be taken to have been settled against the Government since our Constitution came into force.
The learned counsel of the defendants has raised the old and time worn controversy that no claim can succeed against the Government if it is based on tortious acts of Government servants. This controversy has lost its significance since the enactment of Art. 136 in Constitution but this case relates to the period when section 176 of the Government of India Act, 1935, was in force. The learned counsel has further contended that the Government makes laws and wants to abide by them. If any servant of the Government disregards them, then he acts against clearly implied instructions of the Govern ment and no vicarious liability is fixed on it. He referred to District Board of Bhagalpur v. Province of Bihar (A I R 1954 Pat. 529) ; Mani v. State of Madras (A I R 1957 Mad. 190) ; Messrs East & West Steamship Company v. Pakistan (P L D 1958 S C (Pak.) 41) ; Amar Singh v. Deputy Commissioner Gujra_ nwala and others (A I R 193 7 Lab. 748) and Radhakishen v. Secretary of State (A I R 1932 Sind 181).
These arguments are obviously inadequate because they do not take into account the exceptional circumstance that the acts of defendant 2 were ratified and confirmed by the Government and because the vicarious liability of the Government as an employer is not obviated by an implied desire that the laws should be observed. The principle of vicarious liability is different. In the words of Chitaley and Rao, in their Commentary on Art. 300 of the Constitution of India, in Vol. 3, Note 5 (m) Pat. 21 :‑
“This principle is to the effect‑that where the act complained of has been done by the public servant while exercising a statutory authority, and not under the orders of the Govern ment, the Act cannot give rise to a suit against the Government. This proposition is based on the principle that `where the duty to be performed is imposed by law and not by the will of the party employing the agent, the employer is not liable for the wrong done by the agent in such employment’.”
This principle does not help the counsel because in this cast defendant 2 was acting under the orders of the Government and the Government ratified and confirmed his actions as is proved by Exhs. 9, 34, 35 and 36. The acts of defendant 2 were not illegal but they were negligent and disregardful of the consequentially loss to the plaintiff. This negligence according to the learned counsel of the plaintiff, was not merely slackness in the discharge of duty towards the employer because it amounted to playing carelessly with the property and life interest of the plaintiff. It resulted in the detention of the plaintiff’s ship, stoppage of its loading and monetary loss to the plaintiff and enabled the Government to hire space in the ship to send its cargo. In this connection it will be useful to refer to State of Bihar v. Rani Sonabati Kumari (A I R 1954 Pat. 513) in which three exceptions to the rule that the State is not liable for the tortious acts of its servants have been .neatly stated. These exceptions are‑
1. Where the acts complained of were not alts of State but’ were done under the colour of a title conferred by Municipal Law.
2. Where such acts consist in the detention by the State of lands, goods, or chattels belonging to the subjects.
3. Where it is proved that such acts were expressly authorised by the State or that the State profited by them.
In these days when the Government has acquired and tends to acquire more and more a complete control of the economic and commercial pursuits of the citizens, one has to recognize that issuing orders as if speed and efficiency is to be measured by the Government needs only reveals an antiquated attitude of mind. The speed of work and efficiency of the Government Departments must be, to a reasonable degree, equal to the business needs of the commercial pursuits which they control for otherwise they can wreck and ruin the business of the citizens and yet sit snug in their offices as if they had nothing to do with F the destruction brought about by them. The import of negligence must be taken to have been enlarged by the very fa:A that the Government has been entrusted with direct and delicate res ponsibilities towards the business and commercial interests of the citizens. The existence of an emergency is an answer but negligence in regarding it in proper time is an equally good counter reply.
It appears from the evidence of Mr. Moid, P. W. 1 and Cowasjee, P. W. 4, that licences were not issued at all under sections 3 and 3‑A of the Control of Shipping Act, 1947 before the 20th of August 1951. From the evidence of Saudur Rehman, D. W. 1, one can see that a serious shortage of foodgrains and salt occurred in East Pakistan at about this time and the Ministries of Food and Commerce were made to realise the gravity of the situation by pressing demands for these articles. The Controller of Shipping was besieged by these Ministries who pressed him into some activity. The application of the plaintiff made in July 1951, Exh. 7, was disposed of satisfactorily by him on the 4th of September 1951. This delay enabled the Govern ment to send its own cargo of foodgrains on the ship of the plaintiff. The defendants have sought to justify their action on the ground that the urgency for shipping foodgrains was great, but while it is in evidence that 5 foreign ships were also chartered there is no evidence that this ship was indispensable or that it could not be allowed to sail earlier. Technically, therefore, I agree with the plaintiff that defendant 2 himself as well also defendant 1 are liable for the tortious acts done by defendant 2.
Limitation.‑‑Mr. Faruqui has contended that the suit is barred by time under Article 2 of the Limitation Act which is as follows :
Description of Suit.
Period of Limitation.
Time from which period begins to run.
2. For compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in the Province.
When the act or omission takes place.
Mr. Nasiruddin has contended that this Article does not apply to the present case because the negligence and carelessness shown by defendant 2 is in the discharge of his duties. He has relied on the following passage from Mitra’s Limitation Act at page 302 of the 13th Edition :‑
“The intention of this Article is to meet those cases where the defendant does an act injurious or possibly injurious to another, under powers conferred or honestly believed to be conferred by some Act of the Legislature. It does not apply to a case where the damages arise not from the doing of the act or from the failure to do it, but from doing it in an improper manner out of malice and carelessness. Such a case would be governed by Art. 36 Waliulla v. Raj Bahadur 16 O C 211 ; 21 1 C 426”.
Mr. Faruqui has not questioned this statement of law. . In view of what I have said above regarding the proper discharge of duty by defendant 2, I hold that the suit is within time.
Issue No. 12.
‑No arguments have been addressed by Mr. Faruqui on this issue. It is decided in favour of the plaintiff.
Issue No. 13.‑
The suit is dismissed with costs.
A. H. Suit dismissed.