1. MUSHIR ALAM, J.---Through this common judgment, I intend to decide three Suits bearing Nos.
2. 693/97, 694/97 and 695/97 involving similar questions of facts and law. Plaintiffs in above suits have impugned the action of the defendant No.1 charging and collecting outer anchorage charges at Port of Karachi, terming it to be without any legal sanction or lawful authority and so also claimed refund of the amount deducted from their respective accounts. Case as set up the plaintiffs in the suits, appears to be that, the defendant No. 1, "The Trustees of Port of Karachi" comprising the "Board" is a body corporate, having perpetual succession, established under section 4 of the K.P.T. Act, to carry out the provisions of the Act.
3. The Board in terms of sections 43 and 43-A of the KPT Act, is empowered to frame and alter scale of tools, dues, rates and charges for services it provides and for the use of its facilities. Originally section 43 of the KPT Act, did not provide for framing scale of charges and fee for the vessels entering the port limits or approaches for the purpose of anchoring or victuals. For the first time the defendant No.2 through a Notification S.R.O. No. 148(KE)/93/27 of August 2, 1993 (First Notification) notified the schedule of collectable charges in the Gazette of Pakistan dated 2nd August, 1993. It is the case of the Plaintiff that, such charges, though notified, but never recovered for the reason that KPT had at the relevant time, had no statutory sanction. On 13th July, 1994, sub-clause (d) was added to section 43, through Ordinance No. XLIV of 1994, that provided for charges and fee for vessel entering Port limits or approaches for the purposes of anchoring or victuals. Consequently a Notification S.R. O. No. 129(KE) /94/ 12 (second Notification) was also issued and published in the Gazette dated 28th July, 1994 prescribing scale of such fee and charges.
4. According to the plaintiff, the defendant recovered impugned charges from the respective accounts of the Plaintiffs in respect of all the vessels entering the outer anchorage, within the port limit. The recovery of said charges has been impugned and refund thereof is claimed. It appears that, the defendant No.1, the Board of Trustees vide its Resolution No.140, resolved for the withdrawal of the outer anchorage fee w.e.f. 1st July, 1993 from the vessels using outer anchorage for the duration of their waiting and berthing turn. It however, appears that such resolution was never implemented. It is the case of the plaintiff that, despite such legal position, the defendants have unlawfully debited in suit No.693/97 a sum of Rs.1,274,369.66, in Suit No.694/97 a sum of Rs.1,758,000 and in Suit No. 695/97 a sum of Rs.4,615,692 on account of Vessels using outer anchorage for the duration of waiting period for berthing turn. Which amount was neither due, nor payable. Grievance of the plaintiff appears to be that, the defendant is not only refusing to refund the amount unlawfully deducted but has also raised further demand. The defendants opposed the claim raised in the plaint. A preliminary objection as to the maintainability of the suit for want of notice under section 87 of the KPT Act was also raised. On merits, position adopted by the defendant appears to be that, the plaintiffs as an agent of various vessels that called upon Port of Karachi, in terms of section 89 of the KPT Act, are jointly and severally liable to make the payment of dues of vessels. It was denied that, the defendants had no authority to impose or collect the 'outer anchorage charges', at any point in time. Further case of the defendant appears to be that defendant has charged and recovered the amount on the strength of the illegal Notification and S.R.O. Referred to above. It is case of defendants that, the Vessels calling at Karachi Port are liable to pay the outer anchorage charges with effect from 1-7-1993 to 14-11-1995. It was also disputed that the draft corrigendum notification (Annexure P/8 to the Plaint) proposing exemption from payment of outer anchorage charges by the vessels for the duration of their waiting turn has any legal sanctity. It was asserted that unless the defendant No.2 sanctions and issues Exemption Notification under section 43 B of the KPT Act, no exemption as to scale of fee or charges could be effected.
5. On C.M.A. 3692/97, 3693/97 and 3694/97 all under Order XXXIX, rules 1 and 2, C.P.C. Ad interim order, restraining the defendant to debit Plaintiffs Let Pass Deposit Accounts was passed on 26-5-1997. Which applications were ordered to be heard along with the main case, vide order dated 19-2-1999.
6. Out of the pleadings of the parties, the Court on 22-3-1999 adopted the issues proposed by the Plaintiff as well as Issue No.3 proposed by the defendant No.1, was adopted. On 28-2-2000, this Court further framed two preliminary issues, which reads as follows: Preliminary Issues. a) That the suit is not maintainable for want of mandatory Notice under section 87 of the KPT ACT. b) No cause of action has accrued to the Plaintiff against the answering defendants. Issues on merit of the case.
(1) Whether S.R.O. 148(KE)/93/27 of August 2, 1993 (Annexure P-4) and S.R.O. 129(KE)/93/27 dated.
7. July 28, 1994, (Annexure P-5) were issued without any lawful authority?
(2) Whether the defendant No.1 provided any service to the vessels using outer anchorage within port, limits for the duration of their waiting for berthing turn?
(3) Whether the corrigenda (S.RO. 131 (KE)/95 dated 15-11-1995) (Annexure P-6) was effective from the date it was issued or from July 28, 1994?
(4) Whether the plaintiff as agent is liable to discharge the liability incurred by the vessels on account of fee/charges for using anchoring at the outer anchorage within port limits?
(5) Whether the amendments made in section 43 of the KPT Act, 1886 were devoid of statutory sanctions and ultra vires of KPT Act 1886?
(6) What should the Order/Decree be?
8. On 19-2-2002, by consent, it was ordered that, no evidence is required to be led, the suit could be decided on the basis of legal issues involved.- It was accordingly ordered that "issues framed/adopted are to be argued without evidence".
9. Before proceeding to decide issues seriatim, succinctly contentions of the plaintiffs' counsel appears to be that, plaintiffs have impugned the Notification, first being S.R.O. No.148(KE)/93/27 of August 2, 1993 prescribing fee for the Vessels using outer Anchorage within port limit. Ms. Sana Minhas, contended that, through notification dated 2nd August, 1993 charges or fee on Vessels using sea area at outer anchorage, for the first time were notified but, since such charge was not sanctioned by the KPT Act, it was never claimed or recovered. It was therefore, contended the fee chargeable under. The S.R.O. 148(KE)/93 dated 2nd August, 1993 was without statutory sanction secondly that, no services were provided, therefore claim under the notification was unenforceable.
10. Reliance was placed On Collector of Customs v. Sh. Spinning Mills 1999 SCMR 1402 at p.1418)
11. As regard Second Notification S.R.O. 129(KE)/94 dated 12-7-1994, it was conceded that, by virtue of amendment dated 13-7-1994, adding clause (d) to section 43, of the KPT Act, defendant No.1 acquired power to impose such charges. Plaintiffs have, however, impugned the levy through Second Notification on the premise that, imposition of such levy on the one hand would give tool in the hands of KPT to burden the plaintiffs' vessels by keeping the vessel waiting despite availability of berth for extraneous consideration. On the other, imposition of such fee, without providing any facility, was in negation of principle quid pro quo. It is the case of the plaintiffs that the defendant yielded to the protest against the impugned imposition issued a Corrigendum Notification S.R.O. 131 (KE)/95 dated 15th November, 1995, published in the Gazette of Pakistan dated December 21, 1995.
12. Which excluded anchorage charges for the vessel using outer anchorage for duration of the waiting for berthing turn. It was urged that, Corrigendum Notification being beneficial Notification is retrospective in operation. In support of her contention, reliance was placed on Khyber Electric Lamps v. Federation of Pakistan (PLD 1983 Pesh. 112 @ 114(c)), Government of Pakistan v. Sikander Khan PLD 1987 Pesh. 68 at p.75(a), Dada Steel Mills v. CBR (1985 PTD 449), Commissioner Income Tax v. Olympia Watch Company (1987 PTD 739), Army Welfare Trust v. Federation of Pakistan (1992 SCMR 1652 @ 1672), SBP v. Faisal Spinning Mills (1997 SCMR 1244 @ 1252), Commissioner Income Tax v. Shahnawaz Ltd. (1993 SCMR 73 @ 78(d), Ellahi Cotton Mills Ltd. v.
13. Federation of Pakistan (PLD 1997 SC 582 @ 688(ss) and Polvron Ltd. v. Government of Pakistan (PLD 1999 Kar.238 @) 245(d)).
14. I have heard the arguments and perused the record, findings are recorded as follow:- Preliminary Issues (a)
(a) That the suit is not maintainable for want, of mandatory notice under section 87 of the KPT ACT, In order to appreciate contentions of learned counsel for the parties, it would be beneficial to browse through section 87 of the KPT ACT, which runs as follows:- No suit shall be commenced against any person for any thing done or purporting to have been done, in pursuance of this Act, without giving to such person one month's previous notice in writing of the intended suit and of the cause thereof, nor after six moths from the accrual of cause of such suit. Ms. Sana contended that, the bar under the section 87 of the KPT Act, would be attracted only where the action impugned is done in pursuance of KPT Act, and not otherwise. According to her, demand impugned is beyond statutory sanction, void and not enforceable, therefore, bar under section 87 of the KPT Act, is not attracted, the suit is maintainable. In support, she has placed reliance upon K.G Traders v. Deputy Collector of Customs and others (PLD 1997 Kar. 541). In the cited case, this Court examined barring provision of section 217 of the Customs Act, 1969. At page 549, concluded that, "However, it has been consistently held that a mala fide order or one without jurisdiction is a fraud on the law and can never be assumed to have been passed under a particular statute. Therefore a plea as to bar of jurisdiction could only be sustained if it could be shown that the impugned order was passed in the bana fide exercise of powers conferred by the Customs Act or Rules and not otherwise". In said case, it was found that the impugned action taken was without notice as required under the relevant Rules, therefore struck down. In the case of Lakhani and Co. v. Trustees of the Port of Karachi (1988 CLC 1950), it was held that, act if under the Act is done even wrongfully would be deemed to have been done under the Act. In the case of Abdul Rahman Khan v. The Trustees of the Port of Karachi (1988 CLC 1052) this Court expressed its opinion, that "Language of section 87 clearly suggest that notice is required to be given for anything done or purported to have been done in pursuance of the KPT Act".
15. Consensus of judicial opinion appears that, the bar under section 87 of the KPT Act, would be attracted in case firstly, where the act done or .Purported to have been done, meaning thereby that where past act of the KPT has been impugned. Secondly where the impugned action was done or purported to have been done under the Act itself or the rule and regulations framed thereunder.
16. Limitation to challenge the act done or purported to have been done, under the KPT Act, is six months from the date of accrual of cause of action.
17. In the instant case, as the plaintiffs have impugned the past action of the Defendant KPT, based on two Notifications issued by the defendant No.2, Pakistan, through Ministry of Communications. For the reasons recorded on Issue No.1 that, the impugned Notification S.R.O. 148(KE)/93/27 August 2, 1993 (Annexure P-4) was found to be bereft of statutory sanction, therefore beyond the KPT Act.
18. Secondly, the demand against the Vessel cannot be enforced against the Shipping Agent under the KPT Act. Therefore, the suit as far as challenge to such Notification as well as demand as against the agents is not hit by section 87 of the Act. However the suit as regard impugning the second Notification being S.R.O. 129/(KE)/ 94/12 dated July 28, 1994 (Annexure P-4), for the reason recorded while deciding Issue No.1 was found to be under the authority conferred under "Item No. "d" added to section 43 of the KPT Act". As discussed herein, the challenge to the second Notification, under section 43 of the KPT Act and recoveries effected thereunder, was not only a past act but also taken B under the KPT Act. Therefore, is hit by section 87 on both counts namely, for want of statutory notice, as well by . Limitation. Preliminary Issue (b).
(b) No cause of action has accrued to the plaintiff against the answering defendants. Since the defendant No.1 has threatened to recover the amount due and payable by the vessels of which the plaintiffs are the agents. In view of the conclusion drawn, while deciding Issue No.4 that, the agents of the vessels are not liable for port dues, therefore, cause of action has accrued to the plaintiff against the intended act of defendant seeking recovery against the agents. Now adverting to other issues on merits Issue No.1 Whether S.R.O. 148(KE)/93/27 of August 2, 1993 (Annexure P-4) and S.R.O. 129(KE)/93/27 dated July 28, 1994, (Annexure P-5) were issued without any lawful authority?
19. In order to appreciate the contentions of learned counsel for the plaintiff, it will be beneficial to examine the power and authority of the defendant No.1 (KPT) to impose and recover fee, charges, levies or tax. No authority could impose, levy or collect tax or cess unless empowered by law to do so, it therefore follows that no tax, levy, charges, fees or cess could be imposed or recovered without there being any statutory sanction. Imposition of tax, levy, charges, fees or cess is a sovereign function and could only be exercised under the mandate and subject to limitation provided under the law (See Article 7 of the Constitution, 1973).
20. Defendant No.1 in terms of sections 43 and 43-A of the KPT Act, is empowered to frame and alter scale of tolls, dues, rates and charges for the storing, removing, landing and shipment of goods; and for the use of the wharves, quays stages, jetties, piers, mooring and dock. Originally section 43 of the KPT Act, did not provided for framing scale of charges and fee for vessels entering the port limits or approaches for the purpose of anchoring or victuals. By virtue of amendment made on 13th July, 1994 through Ordinance No.XLIV of 1994, sub-clause (d) was added to section 43, which provided for charges and fee for vessel entering Port limits or approaches for the purposes of anchoring or victuals. The charging provision, as relates to the subject-matter of controversy is contained in section 43 of the KPT Act, which reads as under: "43. The Board shall frame and may from time to time alter:--
(a) a scale of tools, dues, rates and charges for the landing and shipment of goods of the wharves, quays, stages, jetties and piers, and for the use of such wharves, quays, stages, jetties, and piers, and for the storing and keeping of any goods stored in any premises belonging to the Board and for the removal of goods and for use of any mooring;
(b) a scale of tools for the use of the said wharves, quays, moorings, stages, jetties and piers, in case the Board permit the goods to be landed or shipped by others than their own servants; and
(c) a scale of charges for any services to be performed by the Board or their servants in respect of any vessel or goods, or for the use of any words or appliances to be provided by the Board."
21. Section 43A of the KPT Act, provides for the scale of charges for the use of dock and other related services as detailed therein. The scale of tax, fee, cess, charges, tolls, dues or rates as may be framed or altered by the Board, under the above provisions become enforceable under law only subject to the sanction by the government and on its publication in the Official Gazette (See section 43B (ibid). See also Zafar Enterprises v. KPT 2003 YLR 205).
22. Issue No.1 calls for examination of vires of two Notifications, first being Notification dated 2nd August, 1993 (Annexure . P/4 to the plaint) and second being Notification S.R.O. No. 129(KE)/94 dated 12-7-94 (Annexure P/5 to the plaint).
23. Challenge to first Notification is pitched on twofold grounds, firstly that, it is beyond the statutory sanction. Secondly, that the KPT in its Board's Resolution No.140 dated 15th September, 1996 resolved that "No charges will be recovered from the ships using Karachi Port's Anchorage for the duration of their waiting time for their turn for berthing". The exemption was given from retrospective effect i.e. From 1-7-1993.
24. Now examining first notification (Annexure P/4 to the plaint) dated. 2nd August, 1993. Schedule of fees, under the notification in Table X, Item No. (d) prescribes as follows: "Vessel using anchoring area at outer anchorage within port limits US$ 0.013 per GRT per day or part thereof."
25. On examining the law on the relevant . Date i.e. 2nd August, 1993, date of first notification, it appears that at the relevant time sections 43 and 43A only provided for power to frame or sanction scales for tolls or charges as regard wharves, quays, moorings, stages, jetties, piers and dock. The charging provision, at the relevant time did not cater for the imposition and or collection of charges and fees for the vessel "using anchoring area at outer anchorage within port limits". Therefore, on the face of it, Item No (d) of Table X of the first Notification 148(KE)/93 dated 2nd August, 1993 prescribing charges for the "vessel using anchoring area at outer Anchorage, within port limits" was not authorized under the KPT Act. In view of the foregoing discussion, Item No. (d) of Table X of the first Notification 148(KE)/93 imposing fee or charges on vessel entering outer anchorage within port of Karachi, had no sanction of law, thus was without lawful authority, therefore cannot be sustained on this ground alone. Though it is exercise in futility to examine the exemption claimed by the plaintiff on the basis of Board's Resolution No.140, as once the very notification is held to be without lawful authority no liability accrues under it. However, in order to set the controversy at rest, the defence taken by the Defendants to the effect that Government never accorded approval to the proposed Resolution No.140 of .The Board as such it could not be implemented was also examined on its face value. It appears that, the defendant No.1, through its Board Resolution No.140 solicited Government's sanction to the Draft Corrigendum Notification Annexure P/8 to the plaint. Board Resolution proposed exemption from the recovery of outer anchorage fee, under item (d) of the Table X with effect from 1-7-1993. It was also the case of the plaintiff that, such draft corrigendum notification was not approved. As observed above that authority to impose tax, charges, fee or cess could only be exercised within the parameter and mandate of law. For a tax, cess, charge or fee to have force of law under the KPT Act, section 43B of the KPT Act, provides that, scale of fee or any alteration thereof, is enforceable under the law provided it qualifies two conditions. Firstly, sanction of the government is obtained. Secondly, the scale of fee, charges, levies etc., or any alteration thereof is published in the official Gazette. Admittedly proposed corrigendum notification, superseding S.R.O.
26. 148 (KE)/93/29, S.R.O. 129(KE)/94 and. S.R.O. 131(KE)/95, did not receive the sanction of the Government, therefore, question of its publication never arose. In terms of section 43B ibid, unless a notification after receiving sanction of the government, is published in the official Gazette, it has no sanction of law. The plaintiffs on the strength of Board Resolution bereft of legal sanction could derive no benefit. Outcome, of above discussion is that, the plaintiff succeeded to establish that, the first notification S.R.O. 148(KE)/93, to the extent of Item No.(d) of Table X, was without statutory sanction, therefore, cannot be sustained. It matters little that, impugned first notification was not altered or rescinded pursuant to the Board's Resolution No.140, for want of Government sanction and publication in the official Gazette. Where the very imposition or charge, fee or tax etc. Is beyond the scope of statutory authority or in colourable exercise of authority irrespective of its publication in the official Gazette on receiving the sanction of the Government, would neither sanctify nor legitimize it. Now adverting to the second part of the first issue, relating to the vires of Second Notification S.R.O. No.129(KE)/94 dated 12-7-1994.
27. Section 43 of the KPT Act was amended by Karachi Port Trust (Amendment) Ordinance, 1994 dated 13th July, 1994. After clause (c) following clause (d) was added to section 43 ibid. "(d) A scale of charges and fees for vessels entering port limit or approaches for the purposes of anchoring and victuals".
28. By grafting clause (d) to section 43 of the KPT Act, the Board of KPT, was empowered to prescribe and frame "A scale of charges and fees for vessels entering port limit or approaches for the purposes of anchoring and victuals"
29. Consequent upon amendment and after incorporation of clause (d) to section 43 of the KPT Act, as reproduced above, second Notification S.R.O. 129 (KE)/94 was issued on 12th July, 1994 and was published in Part II of the Gazette of Pakistan Extraordinary dated 28th July, 1994. Through second notification, fee as prescribed under the first notification of August 2, 1993, was revised to US$0.015 per GRT per day or part thereof. Schedule of fees, under the second notification in Table X, Item No.
(d) prescribes as follows:-- "Vessel using anchoring area at outer anchorage within port limits US$ 0.015 per GRT per day or part thereof."
30. Admittedly the second Notification was issued after the insertion of clause (d) to section 43 of the KPT Act. There is no doubt that such notification was validly issued and has statutory backing. Issue No.2 Whether the defendant No.1 provided any service to the vessels using outer anchorage within port limits for the duration of their waiting for berthing turn?
31. It was specifically averred in the pleadings that for the purpose of waiting period at the outer anchorage no facilities are provided by the Board, therefore, the fee charged on such head of account cannot be sustained. It was case of the plaintiff that the KPT could deliberately refuse to allocate berth to the waiting vessel in order to justify their claim fees of such of head of account providing any services. Learned counsel has emphasized the fee could only be charged against services as against tax which is common burden since no services is provided and no charges could be levied or imposed, such assertion was made in para.7 of the plaint. Ms. Sana Minhas, learned counsel for the plaintiffs, challenge appears to be that, the defendant KPT provides no services at the outer anchorage during waiting period. It was therefore, contended that, it would have been very convenient for the defendant No.1 for extraneous considerations, to deny entry and allocate berth in order to burden the vessel waiting for their turn to discharge the cargo. The defendant in reply thereto only stated that once the ship comes within the area or limit of Port of Karachi it becomes duty to give every kind of service if the vessel is so required. There is nothing on record to suggest that no services are or were provided to the vessel during their waiting period, at the outer anchorage. The very fact that the plaintiff has not availed of any service it cannot be said that no services are provided. In view of lack of material on record, no finding could be given on Issue No.2.
32. Issue No.3 Whether the corrigenda (S.R. O. 131 (KE) /95 dated 15-11-1995 (Annexure P.6) was effective from the date it was issued or from July 28, 1994?
33. Any imposition of levy, tax, fee or charge may be illegal or void for more than one reasons, may it be on account of lack of statutory sanction, want of jurisdiction, excess or colourable exercise of jurisdiction. It may however, be validated and legalized either prospectively or even retrospectively by according statutory sanction, or by conferring appropriate jurisdiction on the authority competent to impose a levy, tax, fee or charge under the law. (For detail discussion see Quetta Textile Mills Ltd. v. Province of Sindh PLD 2005 Karachi 55) .
34. Plaitniffs have impugned the action of the defendant KPT, of deducting charges under second Notification on the premise that the Corrigendum Notification dated 15th November, 1995, was issued whereby Second Notification stood amended with retrospective effect. It is. The case of plaintiff that Corrigendum Notification is retrospective in operation and would apply from the very date of second Notification. Therefore, any recovery made thereunder cannot be sustained and plaintiff is consequently entitled for the refund. It is the case of the plaintiff that, despite Corrigendum Notification, defendant No.2; continued to debit the account of the plaintiffs to claim such charges despite the fact that such anomaly was brought to their notice. It is not the name, title or the nomenclature assigned to a Notification or Statute that determines its real nature or characteristic. It is the tenor, intent and purpose, for which a statute or notification is Issued that classify it to be correcting, annulling, amending, repealing, consolidating or harmonizing statute or notification. When laws enjoin jurisdiction on a statutory functionary to frame law and issue a notification then such jurisdiction also includes power to add, amend, vary or rescind the law or notification so framed or issued, of necessary implication, such jurisdiction also includes power to issue corrigendum as well. (See also section 21 of the General Caluses Act). Authority to issue corrigendum is but incidental to authority to make, add, amend or rescind a statute or notification.
35. By corrigendum Notification, it implies, some misprint, erratum, typo or slip has occurred in earlier notification, that is intended to be rectified, corrected or omission is remedied. Corrigendum notification or statute in effect merely corrects the mistake or remedies the omission occurring in the preceding notification. It does not add or supplement any new state of affair, as its very object is to correct the error and not to cancel or rescind it. The validity of the notification originally issued will, therefore, stand in letter and spirit. If it is a corrigendum, it will not change the complexion of the original notification. However, if any exemption is added either extending or taking away some privilege or concession, then it may be any thing other than mere corrigendum.
36. Effect of corrigendum Notification was examined by a learned Division Bench of Peshawar High Court in the case of GOP v. Sikandar Khan PLD 1987 Pesh, 68 following observation of the learned Division Bench, at page 75 is relevant:-- "In order to clear the point beyond controversy, we have to observe that in official routine, we have not come across any judicial precedent that corrigendum has cancelled the notification originally issued in the matter. As a matter of common practice. Officially, corrigendum is issued in order to correct the notification for completion in all respects. If the intention is to cancel the notification, another notification unqualified by a corrigendum is issued independently with the opening words "In suppression of the notification dated so and so". No corrigendum is issued in such a case."
37. Subject corrigendum notification was examined in the light of the above. It appears that on protest of the plaintiff and other Shipping Companies, the Government of Pakistan and Ministry of Communication; the defendant No.2 issued a Notification dated 15th November, 1995, titled as Corrigenda (Annexure P/6 to the plaint) which reads as follows:-- The Gazette of Pakistan, Extraordinary December 21, 1995 (Part II)
38. Ministry of Communications (Ports and Shipping Wing)
39. Corrigenda Karachi the 15th November, 1995: S.R.O. 131 (KE)/95: In the Government of Pakistan, Ministry of Communication's (Port and Shipping Wing), Karachi, Notification No.S.R.O.129 (KE)/94 dated 12th July, 1994. Published in Part II of the Gazette of Pakistan Extraordinary dated 28th July 1994, following Corrigendum is issued in place of Item No. "d" of Table X of scale. Karachi Outer Anchorage US $ 0.015 per GRT per within Ports Limits. Except day or Part thereof. those vessles using outer Anchorage for the duration of their waiting for berthing turn."
40. On the perusal of the above notification, it appears that the Corrigendum in fact is re-enactment or substitution of the second Notification but, with addition to 'excepting' provision. Moot question that, has engaged the attention of this court is whether the Corrigendum Notification, is prospective or retrospective. It is a sovereign prerogative to enact a statute or issue a notification either with retrospective or prospective effect. Examining the Corrigendum Notification dated 15th November, 1995 in the light of above, it appears that, predecessor Notification was re-enacted verbatim, simply by adding "Except those vessels using outer Anchorage for the duration of their waiting for berthing turn". It does not seem that, any correction or rectification of any error, mistake, typo or slip has been effected. What is achieved by such corrigendum is that, it in fact adds the exemption clause. Therefore, the name Corrigendum applied to the Notification 15th November, 1995, providing exemption is a misnomer and not appropriate, it is by nature and tenor more an amending, revising notification. Where any error, typo, misprint, erratum or slip usually in figure, date, calculation, name of authority/designation etc. Occurs "Corrigendum" is usually issued. In such event, indeed it may have an effect from the date of the original statute or notification and shall be deemed to always been part of such statute or notification. But where it does not supply omission, error, or slip nor correct a mistake occurring in the predecessor notification then it may be a repealing or amending notification. Since through Corrigenda Notification under examination, as already noticed above, Exemption to Item No."d" of Table X of scale, has been added in the charging part of the predecessor Second Notification, that authorized the (KPT) Board to charge fee' from the vessel within the Port Limits as stated above. Substitution of "Item No."d" of Table X of scale in the amending notification titled as Corrigendum is equivalent to a repeal of the "Item No."d" of the Table X of Scale" of the Second Notification as it stood before the amendment/correction. Now it is to be examined as to what is the effect of such repeal on the recoveries of the charges validly made under the Item No.d of Table X of the Scale, as prescribed under the Second Notification till the Corrigenda Notification, as it is called was issued. Generally the Courts do not lean in favour of the repeal readily. Repeal of law is not to be inferred by implication unless it is clearly manifest by the intention of legislation. Applying general principles of interpretation of statutes, a repeal of an enactment does not affect the operation of anything duly done or suffered thereunder or affects any right, privilege according or incurred under any enactment so repealed unless of course, a contrary intention appears in the repealing statute or notification itself. This general principle of interpretation finds expression in section 6 of the General Clauses Act, 1897 as amended, which reads as follows:--
6. Effect of repeal. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention, appears, the repeal shall not:--
(a) revive anything not in force of existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligations, liability, penalty, forfeiture, or punishment as, aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. It therefore, follows that, repeal unless the contrary intention appears does not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder. Nor does it affect any right privilege, obligation or liability acquired, accrued or incurred under any enactment or notification so repealed, as if the repealing Act, notification or regulation had not been passed. Admittedly by virtue of second Notification, that was validly issued, vessels using outer anchorage during their waiting turn for berth, incurred obligation and liability to pay such charges, the liability was validly created and enforced. The liability that accrued and created under second notification does not wipe out with the issuance of corrigenda notification as it is titled. From the language of the Corrigendum as it is titled, it is manifest that recoveries effected under the Second Notification were neither described unjustified nor for that S matter liable to be restored, therefore, in my opinion the Notification dated 15th November, 1995 published on 21st December, 1995 operates prospectively.See also Al-Haj Muhammad Yasrheen Qureshi v. Province of East Pakistan and others PLD 1963 Dacca 1014 and Idrees Ahmed v. Fida Ahmad Khan PLD 1985 SC 376.
41. Issue No.4 Whether the plaintiff as agent is liable to discharge the liability incurred by the vessels on account of fee/ charges for using anchoring at the outer anchorage within port limits?
42. Admittedly, plaintiffs in all three suits are agents for the respective vessles. It was the case of the defendant KPT that the plaintiff being agents for the Vessels is liable to make good the loss of the defendant No.1 as per provisions of section 89 of the KPT Act. In order to appreciate the contentions of Mr. Salman Hamid, Advocate it would be beneficial to reproduce section 89, which reads, as follows:-- Responsibilities of master, etc. The Master, Agent and owner of a vessel shall severally and iointly be responsible for,
(a) any damage caused to the property and servant of the Port, whether within Port's limit or in approaches, by their vessel or servants and such vessel shall be detained till such time the cost of damage as determined by the Board are paid,
(b) any misdeclaration of particulars of vessel and for disobeying the particulars specified for handling of vessel in Karachi Harbour and shall be liable to penalty not exceeding live hundred thousand rupees to be imposed by Chairman or Deputy Conservator, and
(c) the sinking or grounding of any vessel or causing damage to any other vessel in the Port Limit or approaches and for removal of the vessel at their own risk and cost failing which the board may salvage or remove such vessel out of the Port's limit and the cost of such removal shall be recovered from the sale proceeds of such vessel. On bare reading of above provision, it appears that persons held jointly and severally responsible are The Master, Agent and owner of a vessel" only for the acts enumerated in the provision itself namely (a) for the damage caused by the vessel to the property or servant of the Port, (b) misdeclaration of particulars of vessel and for disobeying the particulars specified for handling of vessel in Karachi Harbour and lastly (c) for sinking or grounding of any vessel or causing damage to any other vessel in, the Port limit or approaches and for removal of the vessel. Liability for the port dues does not extend to Agent under the referred provision. In the case reported as Global Tradeways Ltd. v. Tsavliris Russ (World Salvage and Towage) Ltd. 2004 YLR 2581 this Court after examining sections 52 and 53 of the KPT Act, 1886, sections 21, 38, 40, 42 and 43 of the Port Act, 1908 and section 55 of the Customs Act, 1969 considered to examine the liability of a shipping agent for the payment of "Port Dues" at pages 561- 562 it was held as follows:-- "Contention of Mr. Usmani, that as per practice in vogue, the Shipping Agent is liable to pay Port dues of all the vessels under its agency, such wide proposition in absence of any evidence cannot be acceded to even otherwise practice or custom will give way to specific provisions of relevant statute discussed above. As discussed above in the context of the Port Act and KPT Act, Shipping Agcnts may act as a general agent, for various principals or the vessels to facilitate the dealing with Port authority and other State functionaries, as a matter of convenience. As such, Shipping Agent, in a local environment is more conversant with the prevalent laws, practice and procedure of any local area. The liability of the Shipping Agent may be extended to the extent it is spelled out from the agency agreement or imposed by any statutory provision.
43. From the scheme of the all Statutes/Acts, referred to above, it can safely be deduced that each vessel, through master or owner is liable to discharge and pay Port dues and charges. Liability of one vessel or principal, cannot be enforced against the Shipping Agent unless of course such agent undertook or is bound by some declaration as is assumed under section 55(d) of the Customs Act. Even if a shipping agent undertakes byway of declaration, to pay port dues or assumes such liability then too, such undertaking or assumption of liability will not extend to the liability or responsibility of another principal or vessel under its agency. Nothing was brought on record to show that the Agent is liable for the Port Dues. No material is on record to that the plaintiff as an agent for the vessel undertook or is otherwise liable to discharge the liability incurred by the vessels on account of fee/charges for using anchoring at the outer anchorage within port limits. In view of the foregoing discussion it is held that the plaintiffs being agents are not liable to discharge the liability incurred by the vessels on account of fee/charges for using anchoring at the outer anchorage within port limits. Issue No.5 Whether the amendments made in section 43 of the KPT Act, 1886 were devoid of statutory sanctions and ultra vires of KPT Act, 1886?
44. Issue No.5 was adopted from the Issue No.3 suggested by the defendant No.
1. As discussed above, the Legislature has all the authorities to amend, vary or rescind any law, the wisdom of Legislature in this regard cannot be challenged. When vires or legality of any statute is challenged, burden is on person who challenges the vires. The person challenging the vires has to demonstrate firstly that, the statute .Is beyond the legislative competence of the Legislature.
45. Secondly that it is in conflict with the Constitutional provisions and lastly if it is a subordinate legislation or Provincial laws that it is in conflict with the parent Statute or the Federal Statute. In the instant case the plaintiff failed to discharge the burden. Nothing was pointed out to show that the amended provision in any manner is beyond the legislative competence or that it is in conflict with any provision of the Constitution or any.Other superior statute. Accordingly, the amendment cannot be questioned on such account.
46. Issue is answered accordingly. Issue No.6 In view of the discussion made above, it is declared that the S.R.O. 148(KE)/93/27 dated August 2, 1993 (Annexure P/4) to the plaint is without any lawful authority. S.R.O. 131(KE)/95 dated November 15, 1995 (Annexure P/6) to the plaint is prospective in operation. The plaintiff as an agent for the vessel is not liable for the Port Dues of vessel under their respective agency and the amendment made in section 43 of the KPT Act adding clause "D", is validly made. In consequence of discussion made above, no decree in the sum claimed in prayer (a) is passed as the recovery if any was made pursuant to Notification S.R.O. 129 (KE)/94/12 dated July, 28th, 1994 (Annexure P-5 to the plaint), that has been held to be validly issued under section 43(d) of the KPT Act. However, no recovery could be effected for arrears of Vessels under the agency of the plaintiffs.