' SABIHUDDIN AHMED, J.---The petitioners in C.P. No.1215 of 2002 claimed to be users of different courier services for transmitting letters, parcels or other material and appear to be aggrieved by a public notice published by the respondent No.1 appearing in the daily Dawn of April 6, 2002 (reproduced hereinafter) stating that conveyance and delivery of letter post is the exclusive privilege of the Federal Government and their acceptance, transmission and delivery by any other agency would attract the penal provisions of sections 58 and 59 of the Post Office Act. It is prayed that the notice in question be declared as repugnant to the fundamental rights guaranteed in the Constitution and the respondent No.1 be directed to withdraw the same and be further restrained from initiating any prosecution against the petitioners for sending letters, correspondence, documents through messenger services of courier companies. The petitioners in the remaining petitions are engaged in the business of carrying on the business of courier agencies and .Apart from the aforesaid public notice also appear to be aggrieved by letters from the respondent No.1 dated 8-7-2002 and 9-7-2002 whereby the respondent No.1 called a meeting in the exercise of purported power to regulate the business of private courier agencies.
2. The relevant part of the Public Notice dated April 6, 2002 reads as under:-- "It is notified for the information of the general public that under sections 4 and 5 of Post Office Act, 1898, conveyance and delivery of letter post items is the exclusive privilege of Federal Government.
The said Act establishes Pakistan Post Office Department for the said purpose. Any item falling in the category of letter mail cannot be accepted/transmitted/delivered by any other agency including courier transport companies. Any contravention of sections 4 and 5 of Post Office Act attracts penal provisions of sections 58 and 59 of the said Act. Any individual/agency/institution/ organization utilizing the services of any agency other than Post Office for dispatch of communication categorized as a letter mail, will do so at its own risk and costs.
3. The claim to the effect that no agency or courier service can carry any mail appears to be founded upon the provisions of sections 4 and 5 of the Post Office Act, 1898 which may be reproduced as follows: "4(1) Wherever within (Pakistan) post or postal communications are established by the (Central Government), the (Central Government) shall have the exclusive privilege of conveying by post, from one place to another, all letters, except in the following cases, and shall also have the exclusive privilege of performing all the incidental services of receiving, collecting, sending, dispatching and delivering all letters, except in the following cases, that is to say:--
(a) letters sent by a private friend in his way, journey or travel, to be delivered by him to the person to whom they are directed without hire, reward or other profit or advantage for receiving, carrying or delivering them;
(b) letters solely concerning the affairs of the sender or receiver thereof, sent by a messenger on purpose; and letters solely concerning goods or property, sent (by sea or by land or by air) to be delivered.With the goods or property which the letters concern, without hire, reward or other profit or advantage for receiving, carrying or delivering them: Provided that nothing in the section shall authorize any person to make a collection of letters excepted as aforesaid for the purpose of sending them otherwise than by post.
(2) For the purpose of this section and section 5, the expression "letters" includes postcards.
5. Wherever within (Pakistan) posts or postal communications are established by the (Central Government) the following persons are expressly forbidden to collect, carry, tender or deliver letters, or to receive letters for the purpose of carrying or delivering them, although they obtain no hire, reward or other profit or advantage for so doing that is to say:
(a) common carriers of passengers of goods, and their servants or agents, except as regards letters solely concerning goods in their carts or carriages;
(b) owners and masters of vessels sailing or passing on any river or canal in (Pakistan) or between any ports or places in (Pakistan) and their servants or agents, except as regards letters solely concerning goods on board, and except as regards postal articles received for conveyance under Chapter (VIII); and ( c ) owners, pilots and other members of the crew of aircraft flying from or to any airports in Pakistan."
4.Mr. M. Naim-ur-Rehman learned counsel for the petitioners in C.P. No.1215 of 2002 vehemently argued that private courier agencies were rendering a very high degree of public service and their closure for the purpose of conceding monopoly power to the Government in postal communication would be severely detrimental to public interest. In the above context, he relied upon a variety of material indicating efficient performance of service by such agencies. We need not examine this material in detail as we are inclined to assume his assessment of facts may be correct as to the efficiency of such agencies and may proceed to record that even this Court has at time encouraged service of notice through courier.
5. From the above learned counsel proceeded to argue that section 4 did not confer an absolute right or duty upon the Federal Government to undertake the service of conveying letters by post but merely a privilege and a privilege must invariably yield to the requirements of public interest. In support of his view learned counsel relied upon the certain observations of the Honourable Supreme Court Sir Edward Snelson v. The Judge's of the High Court of West Pakistan Lahore and another (PLD 1961 SC 237 at page 286) and ,Karamat Hussain v. Muhammad Zaman (PLD 1987 SC 139 at page 144). ,
6. In Snelson's case in response to a charge of contempt of Court, the appellant had taken the plea that the impugned speech was privileged in terms of section 123 of the then Evidence Act (which was similar to Article 6 of the Qanun-e-Shahadat Order) being an unpublished communication relating, to the affairs of the State. Their Lordships observed that no defence of privilege could be sustained against public interest and protection of the dignity of Courts being a matter of prime public interest the claim had to be disallowed. While there could be no Cavil with the observations of the Honourable Supreme Court and indeed the executive or an individual could not be allowed to raise a claim contrary to public interest the case appears to be clearly distinguishable because here we are not dealing with any executive action but merely interpreting a legislative edict.
7. Learned counsel then placed reliance upon Karamat Hussain's case to bring out a distinction between a right and a privilege in the following words: "True the exercise of this (revisional) jurisdiction by the High Court is discretionary but that does not mean that a revision is not a right but only a privilege. A privilege is some particular benefit or advantage conferred on a person or a class of persons which other citizens do not enjoy while a right is some benefit conferred on a person by virtue of a given law."
8. We are at a loss to undeistand how these observations help learned counsel in the context of the above case. Evidently what has been described as a "exclusive privilege" has been conferred upon the Federal Government by an Act of Parliament. Section 4 explicitly refers to three express conditions where the service in question can be performed by somebody other than the Federal Government and 'sub-clause (a) mentions that it could be rendered by a private friend without reward or profit. However, section 5 expressly. Forbids a person who travels frequently in the normal course of his business to render the aforesaid service even voluntarily. Moreover, the fact that violation of these provisions is to be visited by penal consequences makes the legislative intent, clearer to the extent that the sole right to carry on this business was conferred upon the Federal Government and protected against intrusion. In the circumstances nothing turns upon the use of the word privilege. We therefore, find Mr. Naim:ur-Rahman's argument to be entirely untenable.
9. Learned counsel then argued, that conceding a monopoly power to the Federal Government in carrying on the service would amount to violation of Article '18 of the Constitution, which guarantees, subject to such qualifications as may be prescribed by law, every citizen the right to enter upon any lawful trade or business. Unfortunately we find this contention to be equally untenable in as much as proviso (c) to the same Article stipulates that nothing in this Article shall prevent the carrying on, by the Federal or the Provincial Government, or by corporation controlled by such Government, any trade, business, industry or service to the exclusion of other persons.
10. Learned counsel however, argued that the restrictions on the right must be reasonable and referred to a similar right guaranteed by Article 19(1)(g) of the Constitution of India which is subject to the following conditions laid down in Article 19(6) which may be reproduced as follows:-- "(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub- clause, and in particular, nothing in the said sub-clause shall affect the operation of any existing law insofar as it relates to or prevent the State from making any law relating to:--
(i) the professional or technical qualifications necessary for practizing any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion complete or partial of citizens or otherwise."
11. Though it could possibly be argued that according to the Indian Constitution a provision conferring exclusive right to carry on a business or service by State or under State control must also be reasonable and in the interest of the general public the language of our Constitution is unambiguous and does not leave any room for interpretation. Article .18 clearly states that the right simply does not exist in areas where exclusive power to conduct a business has been conferred upon the Government or a corporation owned or controlled by it. We therefore, find no substance in this contention either.
12. Mr. Naim-ur-Rehman also argued that conferment of monopoly power upon the Federal Government and denial of a more efficient mode of communication through private couriers was violative of the petitioners right to life guaranteed by Article 9 of the Constitution which has lately received a far more expansive interpretation through the Honourable Supreme Court. Indeed in Shehla Zia v.
WAPDA (PLD 1994 SC 673) their Lorships did hold that the right was not confined to mere vegetable existence but included the right to enjoy all basic amenities of life including living with dignity in a pollution free environment. Learned counsel attempted to emphasize that the performance of private courier agencies was definitely of a far superior nature than that of respondent No.1. On the other hand Mr. Ahmed Raza Kasuri learned counsel for respondent No.1 attempted to show that how the said respondent had tremendously increased the facilities offered in the past. We do not however, think it necessary to enter into such factual controversies. All that needs to be stated is that it is well-settled that a Court should attempt to save rather than destroy a Statute. Even if we accept Mr. Naim-ur-Rehman's assertion it would be impossible to draw the conclusion that the existence of a somewhat less efficient services for delivery of letters being run by the Government would amount to denial of basic amenities of life particularly in an era where electronic communication has become easy and accessible. The plea therefore, has to be rejected.
13. Mr. Qadir H. Saeed learned counsel for the petitioner in C.P. No.1508 of 2002 while supporting Mr. Naim-ur-Rehman's contention further argued that:--
(i) That the incapability of the respondent No.1 to deal with mail requiring early delivery has been acknowledged by the Government itself as is inter alia evident from State Bank circulars practice of NADRA etc.
(ii) The legality of such services was even accorded legislative recognition by recent legislation such as the amendment in Order 5 Rule 20, C.P.C. In 1994 and section 9(5) of the Banking Companies (Recovery of Finance) Ordinance 2001. Moreover, the services provided by the petitioner were declared excisable services in terms of item No.14.08 to the Schedule to the Central Excises Act, 1944 and the petitioner who was being subjected to payment of excise duty and sales tax on such services. Through the Punjab Finance Act, 1999, 5% stamp duty is leviable on the amount received by a courier for delivery of a document.
(iii) That the right of the petitioner to carry on business was also recognized by the learned Wafaqi Mohtasib through an order dated 2-1-1987.Section 4(1) of the Post Office Act, 1898 had to be given a very strict construction and the respondent No.1 was clearly wrong in treating this expression synonymous, to the expression "Postal Article" defined in section 2(i) of the Post Office Act.
(v) That in any event the petitioner's case was covered by proviso (b) to section 4(1) of the Post Office Act which stipulates that the exclusive privilege of the Federal Government does not extend to "letters solely concerning the affairs of the sender or receiver thereof, sent by the messenger on purposes." (Underlining is ours).
14 The first contention founded upon facts has indeed not been disputed. The problem however, is that in case the matter had received the attention of the Government at the highest level a proper amendment could always be made in sections 4 and 5 of the Post Office Act to do away with the monopoly of the Post Office. Indeed appropriate legislation was brought' about when it was felt that carrying on certain industries under Government Control was no longer in the public interest.
In the instant case it seems that some autonomous bathes controlled by the Government thought it more desirable to use private courier services without noticing statutory provisions. Nevertheless, as far as Courts are concerned they are bound to ensure that all persons including agencies of the Government must act strictly in accordance with law. The above assertion, therefore, is of little help to the petitioners.
15. Mr. Qadir H. Saeed is also correct in contending that in several recent statutes delivery of documents through courier services is mentioned. However, what needs to be examined is whether these provisions could be treated as having effaced section 4 of the Post Office Act.
16. Taking up the case of Punjab Stamp Act, it may be noticed that Article 53(d) inserted in the First Schedule provides for a 5% duty on a receipt issued by the courier service which has been defined to mean a private establishment engaged in the business of transmitting letters, parcels or other material. Therefore, it prima facie suggests that even letters can be carried through such agencies.
Nevertheless, being a provincial legislation it could not be assumed override the Post Office Act in view of the mandate of Article 143 of the Constitution.
17. With respect to other laws however, it would be necessary to show that their provisions amounted to repealing section 4 of the Post Office Act. It ought to the kept in view that inferring repeal by implication is always disapproved by Courts save in very exceptional circumstances i.e. Where it is absolutely impossible to allow the twoStatutes to stand together. In Harlow v. Minister of France Court (1951 2KB 98) the King's Bench held "wherever Parliament in an earlier Statute has directed its attention to an individual case and has made provisions for it unambiguously, there arises a presumption that if in a subsequent Statute the Legislature lays down a general principle, it is not to be taken as meaning to rip-up what the Legislature had provided for individually unless an intention to do so is specifically declared." Applying these principles to the cases before us it is evident that none of the Statutes referred to by Mr. Qadir H. Saeed deals specifically with the service declared to be provided by the Post Office. The Central Excises Act is a revenue law and stipulates that courier services would be treated as excisable services required to pay excise duty.
The other laws only deal with the procedure of Courts enabling service of summons through courier.
18. From the foregoing it appears that the correct approach would be to harmoniously reconcile all these Statutes. This is precisely what the Honourable Federal Mohtasib in his order date 2-1-1997 that "the complainant is free to operate courier service so far as packages are concerned, excluding letters which means "a communication by any person to another sent in writing, print, or type. The communication may be disseminated to information, thought, idea or advice".
19. Mr. Qadir H. Saeed appe'ars to be right in contending that every postal article as defined in section 2(i) of the Post Office Act cannot be treated as a letter for the purpose of section 4 because the ambit of the definition is much wider and includes not merely a letter but also newspapers, books, packets, parcels and everything transmissible by post. Though the expression "letter" has surprisingly not been defined in the Act and therefore, we have to rely on its ordinary dictionary meaning which seems to define it as a written or printed message normally sent in an envelope by post. We are also inclined to give this expression a limited connotation so that the existence of courier services is not jeoparadized. Nevertheless, Mr. Qadir, H. Saeed was unable to suggest a clear line or distinction between "documents" which had to be treated as letters and those to which sections 4 and 5 do not apply. In the circumstances, we are inclined to hold that though packages and parcels could be transmitted through private couriers, the prohibitions contained in sections 4 and 5 would continue to remain operative. It may be added that while allowing summons to be served through such services the Legislature was conscious of the fact that they were required to be accompanied by copies of the plaint and annexure and therefore, had to be delivered in the form of package.
20. Learned counsel strenuously contended that the provisions of section 4(1) of the Post Office Act did not affect the petitioner as they were covered by exception (b) to the aforesaid section enabling transmission of letters solely concerning the affairs of the sender or receiver thereof sent by a messenger on purpose. He pointed out that while exceptions (a) and (c) enabled transmission of letters under certain conditions without reward or profit no such condition related to exception (b). The contention to this effect appears correct. Nevertheless, with profound respects, we are entirely unable to accept the view that the petitioner is covered by the expression "messenger, on purpose". It needs to be kept in view that an exception to the rule has to be strictly construed and cannot in any manner be so interpreted as to destroy the rule itself. If every institution engaged in the profession of accepting letters from sender and delivering them to the receivers is treated as messenger on purpose then the main provisions conferring exclusive privilege upon the Federal Government will itself be completely destroyed.
21. Mr. Abdul Sattar Pinger appearing for the petitioner in C.P. No.1558 of 2002 pointed out that the petitioner had commenced business after obtaining permission from the then Investment Promotion Bureau Government of Pakistan. Moreover, while relying upon Article 18 of the Constitution he urged that the right of the petitioner to enter into contracts with its customers was also guaranteed by the aforesaid Constitutional provision. As regards first plea it may be sufficient to state that any permission granted by the executive must invariably conform to the requirements of law and therefore, it cannot be urged that such provisions had the effect of overriding an operative statute. Moreover, while we agree that the right to carry on business includes the right to enter into lawful contracts it must be seen that the fundamental right itself is only confined to carrying on a lawful business and the moment a valid law prohibits the carrying on of such business by a particular class of people no reliance can be placed on the Constitutional guarantee.
22. M/s. Kazim Hassan and Mazhar Jaferi mainly adopted the contention of Mr. Qadir H. Saeed. The former however, emphatically argued that irrespective of the provisions of section 4 of the Post Office Act, the Respondent No.1 had no authority to regulate the management and business of private courier companies and therefore, the letters issued by the respondent No.1 calling meeting with the representatives of courier services for regulating their policies or laying down conditions for licensing were altogether without jurisdiction and invalid. Indeed the contention to the aforesaid extent appears to be correct and Mr. Ahmed Raza Kasuri learned counsel for the respondents candidly conceded the above legal position and stated that the aforesaid respondent was not interested in regulating the affairs of the courier companies. In the above context, it may be recalled that in 1994 when Pakistan Postal Service Corporation was set up as an autonomous body and the Post Office Act was radically amended, a provision was made in section 20 stipulating that regulation of activities of private courier agencies was a function of the corporation. Nevertheless, Mr. Kasuri conceded that the aforesaid section 20 was repealed in 1996 and presently there is no provision in law allowing the respondent No.1 to regulate the activities of such agencies.
23. Responding to the other contentions of the learned counsel for the petitioners Mr. Kasoori however, in the summary of arguments presented in writing argued that by acting in a manner that Pakistan Post was rendering an extremely important public service in conveying inland letters from one place to another throughout the country which was an important function of the Government. It is undertaken that such service remains cost-effective and at the same time, remains affordable to the common man. For this reason the Government is protected against competition from quarters, which tend to provide it selectively in a few areas only with a profit motive whereby the Government stands deprived of revenues which could be used for the purpose of providing the services at a subsidized rate, mostly in rural areas. Learned counsel pointed out that the exculsive privilege of' the Government to run or carry on a postal service is not confined to Pakistan alone but is in fact in vogue in several developed countries of the world as well i.e. Australia, Canada, Netherlands and U.K.
24. In any event however, we do not feel persuaded to enter into the controversy whether delivery of letters should be the exclusive privilege of the Government or a Government agency or whether private courier should also be allowed to perform the same duties. Indeed plausible arguments could be advanced in support of either point of view. The appropriate decision has to be made by the Legislature and not by Courts. All that we are required to see is whether under the existing law can such service be performed by private couriers?
25. As discussed above the duty to convey letters vests exclusively in the Federal Government. This exclusive privilege however, is only confined to letters and not all forms of postal articles. Though Mr. Qadir H. Saeed argued that the expression "letter" ought to be strictly construed he was unable to suggest a line distinguishing a letter from "non-letters". Unfortunately the expression "letter" has not been defined in the Post Office Act and therefore, one has to resort to its ordinary dictionary meaning. In Black's Law Dictionary it has been prescribed as a written communication that is usually enclosed in an envelope, sealed, stamped and delivered. In Chamber's 21st Century Dictionary, it is described as a written or printed message normally sent by post in an envelope. By virtue of section 4(2) of the Post Office Act, it would include post cards.
26. In his order dated 2-1-1987, the learned Wafaqi Mohtasib held that the question whether a particular article is or is not a letter within the meaning of section 4 can be examined in legal proceedings only. Nevertheless, he recorded the following observations:-- "Keeping in view the above provisions of the Post Office Act, the complainant is free to operate courier service so far as packages are concerned, excluding letter which means "a communication by one person to another sent in writing, print or type". Communication may be dissemination of information, thought, idea or advice."
27. Mr. Qadif H. Saeed argued that the distinction brought about by the learned Wafaqi Mohtasib was not based upon any legal principle. Nevertheless, neither he nor any of the other learned counsel were able to draw a distinction between what constituted a letter and what did not. On the contrary Mr. Nairn-ur-Rehman asserted that a private courier agency could be used for transmission of all written communication. The reliance of other petitioners on section 4( I)(b) also amounted to an assertion that they were entitled to transmit letters. Such plea we are W afraid cannot be accepted. Moreover a careful reading of sections 4 and 5 of the Act also shows that there can be no legal basis for drawing a distinction between business communication and ordinary letter.
28. Nevertheless, since we have not received sufficient assistance on the question as to the scope of the expression "letter" we would leave that question open to be decided in appropriate legal proceedings. As such .We find nothing objectionable in the public notice. However, with respect to notices dated 8-7-2002 and 9-7-2002, we would hold that the same were issued without lawful authority and are of no legal effect. The above are our reasons for passing the short order dated 25-5-2004. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.