' In these Writ Petitions (W. P. Nos. 4434/79, and 6377/79, 8049/79 common questions of fact and law are involved which can be conveniently disposed of by a consolidated order.
2. The petitioners are the travelling agencies licensed under the Travel Agencies Act, 1976 (XXX of 1976). Their field of operation is provided by rule 6 of The Travel Agencies Rules, 1977 as amended in the year 1978. The very terminology 'travel agencies' connotes that they function for the principals who are the travel services and from whom they are entitled to receive commissions as profit of business. They are not permitted to charge any amount on the sale of tickets on behalf of the principals but in respect of other business their rates of service charge have been approved by the Travel Agencies Regulatory Committee set up by the Federal Government under section 3 of the Act. The object of the Act supplemented by the Rules is to ensure fair deal to the persons who happen to come in contact with the travel agencies and to provide a compact system in the field of operation of travel agencies, the development, regulation and control of which have been subjected to the scheme to encourage the tourism and travel which are the matters connected with the prestige of the Government and reputation of the people of the country. Thus a self- sufficient scheme is provided for the common good.
3. The learned counsel appearing in support of these writ petitioners have raised the following contentions :-
(1) The prescription of licence fees and business guarantee fund falls exclusively within the authority of Travel Agencies Regulatory Committee to be set up by the Federal Government under section 3 of the Act and in the absence of such a Committee the exercise of powers in relation to the fees and fund are ultra vires of the statute.
(2) The Act has not laid down the quantum of fees and fund by itself but it is left to the power of the Rule-making authority, to be prescribed. Such delegation of power is not permissible by law.
(3) The experience has shown that at no time the amount of claims to be paid out of the business guarantee fund has exceeded the limit of a few thousands, as such the requirement of deposit or bank guarantee to the tune of Rs, 1,50,000 is not commensuration with the number of claims to be adjusted out of the fund. The amount of fund is prescribed in excessive terms.
(4) The Act provides in preamble for the development, regulation and control of the profession of travel agencies in Pakistan but the condition of deposit of fund or furnishing of bank guarantee in the alternative prevents the profession of travel agencies from being developed which is against the spirit of the preamble.
(5) The Federal Legislature is no doubt competent to legislate in respect of the subjects provided in the concurrent list in Part-II of the legislative lists contained in Schedule IV to the Constitution on the subject of tourism but has got no power to legislate on the profession of travel agencies.
(6) Under Article 18 falling in the Fundamental Rights enshrined in the Constitution, the freedom of profession is guaranteed subject to any law of licensing system. In the licence issued under the Act no condition of deposit of business guarantee fund or furnishing bank guarantee in the alternate is provided. Such a condition cannot be imposed without any provision in the licence.
4. On the first point an affidavit has been filed by the respondent which is sworn by Ch. Khan Muhammad, Deputy Controller, Department of Tourist Services, Tourist Division, 27-G, Gulberg II, Lahore that the Federal Government by Notification S. R.
0. No, 926 (1)/76 dated 27th August, 1976 had set up the Travel Agencies Regulatory Committee on which the representative of travel agencies had also been taken and the Committee has been functioning ever since it had been set up in the year 1976.
5. Even otherwise the Federal Government is the principal authority under the Act and the functions of the Travel Agencies Regulatory Committee are only advisory. If one source of power is available to the principal authority even without advice of the Committee the functions can be regulated by framing of rules consistent with the purposes of the Act which. In fact, have been framed and the matters in the advisory control of the Committee have been prescribed. The Committee, if required to be set up to streamline the working of the scheme envisaged by the Act then the power can be exercised by the principal authority itself in accordance with the object of the Act. Not only the matters of fees and fund have been regulated in the terms of section 3 of the Act but also prescribed consistently with the purposes of the Act. Thus the point raised has no substance factually and legally.
6. On Point No, 2, it is suffice to mention that the fees and fund have been provided by the Act itself and only their quantum which is the matter of detail has been left to the power of the rule-making authority. Such a delegation is permissible by law and if any authority is needed, reference is made to Muhammad Ismail & Co. Etc. v. Chief Cotton inspector (1) and the relevant rule taken from PLD 1952 FC 29 is reproduced with advantage : "In my opinion, matters of a fundamental made or of general policy or of great importance, cannot be delegated, though powers may be assigned within reasonable limits and scope, such as, the determination of time, place, persons, dutiable commodities, etc., so that rules, regulations, schemes and bye-laws may be made by anyone empowered to do so, within the framework of the main legislation ; the main legislation itself, however, cannot be dictated ((sic)-delegated) or its contents revived under the delegated power ; to say otherwise would virtually amount to permitting an abdication or a surrender of the legislative authority itself reposed in the person delegating it his point also fails on the legal plane.
(1) PLD 1966 SC 388
7. The business guarantee fund or bank guarantee in the alternate has been provided at Rs, 1,50,000 to start with the scheme of adjustment of claims out of the fund on safer footing. As the working of the scheme has practically advanced the amount of business guarantee fund has already been reduced by amendment in the Rules issued in the year 1978. Even further consideration in light of the practical experience as submitted by the Standing Counsel for the Federal Government can be given to reduce the amount of fund or bank guarantee. This guarantee fund is not utilized except for the claims of clients and it remains the property of the travel agencies and is redeemable under rule 18 of the Travel Agencies Rules, 1977. This is only a condition of good performance. Facility of bank guarantee is provided for cash deposit. Even the working capital initially fixed at Rs, 4,00,000 has been reduced to Rs, 2,00,000 by subsequent amendment in the Rules in the year 1978. Both the profession and the operation of travel agencies have been safeguarded by provision of the business guarantee fund or bank guarantee in the alternate. Such a condition of fund is not prescribed in excessive term having regard to the nature of profession of travel agencies who deal with variety of peoples and concerned with providing facilities to the travelling public. To a business class such a condition is normal because the business class is considered to be a privileged class than the poor class. The scheme of the Act and Rules framed thereunder have been made in spirit of understanding between the profession and the dealing public. If the travel agencies have taken upon them the responsibility of operation of the scheme they can be also made responsible for good performance and that is the object of the business guarantee fund. The petitioners cannot be permitted to accept the privileges of the licence and throw away the conditions of its operation. They are bound to accept the system as a whole.
8. In relation to Point No, 4, it is not correct that the provision of business guarantee fund or bank guarantee in the alternate is not a step for the development of profession of travel agencies in Pakistan. The development of profession is to be judged by the effects that influence the mind of public. It is not a scheme to boost up the income of travel agencies. In the scheme a good result is envisaged for the public who happen to come in contact with the profession and carry the impression of its development or no development. If the object of the Act is the good of the persons who are to be benefited by the scheme then the interest of persons who practice the profession would not be the only consideration in the development which depended upon the success of the scheme as a whole and they are required to make their contribution to its development. The development by the introduction of business guarantee fund or bank guarantee in the alternate is clearly contemplated both for the good of profession and clients. A particular thinking of the business class in relation to the discharge of its obligations towards others in the terms of its own profit is not the real element of development which should include both privilege and performance.
Thus the development in the scheme of business guarantee fund or bank guarantee in the alternate is manifest in the context of operation of the Act.
9. In regard to point No, 5, the contention of the learned counsel for the petitioners is wholly misconceived. Tourism is the subject provided by Item 42 in Part-II of the legislative list in Schedule IV which envisages all provisions for Tourism. Without transport facilities it is not imaginable. Thus the transport facilities and other connected services are the incidental subject of tourism for which clear powers are contained in c the Legislative Item 47 of Part II of the said legislative lists in Schedule to the Constitution.
10. As regards the last point, no doubt condition of business guarantee fund or bank guarantee in the alternate is not provided in the conditions of licence itself but the learned counsel has overlooked the fact that the licence itself is the part of the scheme brought about by the Act.
Licence under the Act should automatically carry other conditions provided in the Act without any specific mention in the licence. Licence is one measure and the other measures forming part of the same scheme cannot be thrown away if the person has entered into the house built by the Act which contains other measures for comfortable living with undertaking. Licence is the creature of the Act and cannot stand apart from its creator. The scheme of the Act has covered a field of human activities of which the licence is one aspect. The licence alone does not fulfil the object of the Act but it is clearly introduced for the purposes of development, regulation and control of the profession of travel agencies from which the licence cannot be served. The licensing system in the present context has provided for other conditions which shall be read as D part of the licence and the obligation of the licence-holder is not to enjoy privilege with nothing to risk but he is equally made liable to discharge his obligations towards the clients.
11. In the above circumstances, the contentions raised by the learned counsel for the petitioners do not reflect upon the good object undertaken by the Scheme of Travel Agencies Act, 1976 (XXX of 1976), Writ Petitions (Nos. 4434/79, 6377/79 and 8049/79) have no merit and are dismissed with costs.