' AJMAL MIAN, C.J.--By this petition, the petitioners, who were partners in the partnership firm M/s. United Oriental Steamship Company and were owning at the relevant time, inter alia, the vessel named "m.s. IMTIAZBAKSH", (hereinafter referred to as the vessel), have filed the present petition for the following reliefs: "It is, therefore, prayed that this Hon'ble Court may call for the record and proceedings relating to the above matter from the respondents atovenamed and after giving a hearing to the parties, may be pleased:--
(a) to direct the respondents, their officers and servants, their agents or persons acting under or by their authority to refrain from taking, over retaining or laying over the vessel "IMTIAZ BAKHSH" which the respondents and none of them is permitted by law to do and to direct the respondents to release the said vessel and hand it back to the petitioners which they are required by law to do and which, after the filing of this petition and during the course of these proceedings is now reported to be sold for case price and that, conversion i.e, the sale price with interest, at 15% p.a. With quarterly rests, from date of the sale until payment, be ordered, to be paid to the petitioners being merely conversion of the property illegally taken over;
(b) to declare that the acts done or proceedings taken by the respondents in connection with the vessel "IMTIAZ BAKHSH' have been done or taken without lawful authority and are of no legal effect and the vessel is liable to be restored to the petitioners and in the event of its sale, as now reported by the respondents its conversion, as in the foregoing clause i.e, its sale price and interest as above, be ordered to be paid by the respondents to the petitioners.
(c) to award costs and also special cost in the circumstances of the case;
(d) Any other/further/additional relief or reliefs which may be deemed appropriate in or about the circumstances of the case be also granted."
2. The relevant facts leading to the filing of the above petition are that Pakistan Maritime Shipping (Regulation and Control) Act, 1974 (hereinafter referred to as the Act), was enacted and gazetted on 11-3-1974 for the purpose of providing for regulating the A management, operation and future development of maritime shipping, so as to maintain services essential to the life of the community and to promote foreign trade and to provide for matters connected therewith' or incidental thereto.
' It seems that in pursuance of section 5(1)(a) of the Act, inter alia, the control and management of the petitioners' firm, business and the vessel were taken over by respondent No,1, which were handed over to respondent No,3. The petitioners protested the taking over of the vessel on the ground that the vessel was discarded and was not fit for ocean voyage, sailings and, therefore, the same could not have been taken over for the objects of the Act referred to hereinabove. Since the protest and the various representations made by the petitioners did not bring any result, the petitioners filed the above petition for the above-quoted reliefs:
3. In support of the above petition. Mr. 1.11. Zaidi learned counsel for the petitioners has submitted as follows:
(i) That since the vessel was not seaworthy, it could not have been taken over under section 5(1)(a) of the Act as it was not fit for the objects of the Act and hence the taking over of the same was without jurisdiction.
(ii) That the Act was violative of Articles 4, 23 and 24 of the Constitution of Islamic Republic of Pakistan, hereinafter referred to as the Constitution.
On the other hand, Mr. S. M. Mahmoodul Hassan learned counsel for the respondents has urged as under:--
(i) That admittedly the vessel when it was taken over was on voyage and, therefore, it was seaworthy and hence could have been taken over for the objects mentioned in the Act.
(ii) That the petitioners have not claimed any relief about declaring the Act as ultra vires of Articles 4, 23 and 24 of the Constitution and, therefore the petitioners cannot be allowed to urge the above point.
(i) That in any case the Act is not ultra vires of the above provisions of the Constitution.
4. Adverting to the first submission of Mr. Zaidi that since the vessel was not seaworthy it could not have been taken over, for the objects mentioned in the Act, it may be observed that he has referred to the preamble to the above Act and also to the definition of the term 'seaworthy' given in Ballantine's Law Dictionary, Third Edition and Black's Law Dictionary, Fifth Edition. We have already referred to hereinabove the preamble to the Act while narrating the facts and, therefore the same need not be reproduced. However, it will suffice to observe that the object of the Act was to bring the maritime shipping into public sector for the objects referred to hereinabove. As regards the definition of the term 'seaworthy' it may be advantageous to reproduce the definitions given in the above two well-known law dictionaries: ' Ballentine's Law Dictionary.
"Seaworthy" Able to withstand the forces of the sea. Fireman's ruled In (--; Campania de Navigation (CA 5 La) 19 F 2d
493. Reasonable fit, from the standpoint of a vessel, to perform the service-which she has undertaken to perform. Tight, staunch, strong in the hull, well-furnished and victualed, and in all respects equipped in the usual canner for the service in which she is engaged, including a crew, adequate in number and sufficient and competent for the voyage, and a master of skill, competence, sound judgment and discretion. 48 Am J 1st Ship S 44. The condition of a ship staunch and sound, of sufficient materials and construction, with sufficient sails, tackle, rigging, cables, anchors, stores and supplies, commanded by a master of competent skill and capacity, worked by a competent and sufficient crew, and generally, in every respect, fit for the voyage contemplated.29A Am J Rev ed Ins S 999.
' A ship which is badly stowed is unseaworthy. The Malcolm Baxter, Jr. French Overseas Corp. v.
French Republic (CA2 NY) 20 F 2d 30."
' Black's. Law Dictionary.
"Seaworthy" This adjective, applied to a vessel, signifies that she is properly constructed, prepared, manned, equipped, and provided, for the voyage intended. A seaworthy vessel must, in general, be sufficiently strong and staunch and equipped with appropriate appurtenances to allow it to safely engage in trade for which it was intended. Texaco v. Universal Marine, Inc., D.C.La.. 400 F.Supp. 311,
320. Reasonable fitness to perform or do the work at hand. In re Brown & Root Marine Operators, Inc., D.C. Tex., 267 F.Supp.588, 592. Test of whether vessel or its equipment is seaworthy is whether ship or its appurtenances are reasonably fit for her intended service. Melancon v. I. M.C. Drilling Mud, La. App., 282 So.2d 532, 536.
' In marine insurance, a warranty of seaworthiness means that the vessel is competent to resist the ordinary attacks of wind and weather, and is competently equipped- and manned for the voyage, with a sufficient crew, and with sufficient means to sustain them, and with a captain of general good character and nautical skill.
' A warranty of seaworthiness extends not only to the condition of the structure of the ship itself, but requires that it be properly laden, and provided with a competent master, a sufficient number of competent officers and seamen, and the requisite appurtenances and equipments, such as ballast, cables and anchors, cordage and sails, food, water, fuel, and lights, and other necessary or proper stores and implements for the voyage."
' In nut-shell the term 'seaworthy' means that the vessel is able to withstand the forces of the sea and is reasonably fit to perform the service which it has undertaken to perform. The vessel should not only be fit structurally but should also be equipped in all respects including the engagement of crew etc. ' In furtherance of his above submission Mr. Zaidi has vehemently contended that since the vessel was to be sold as a scrap after it would have completed its contractual commitment within a few months, the vessel could not have been treated as seaworthy fit for the objects of the- Act as it would not have contributed towards the development of maritime shipping or to maintain services essential to the life of the community or to promote foreign trade. Mr. Zaidi has also invited our attention to the fact that respondents after taking over of the vessel invited tenders for the sale of the vessel first on 17-10-4974 and then on 31-10-1974 and that in the latter invitation for tenders reserved price fixed was only Rs,73,00,000 (Rupees seventy-three lacs only).. In this behalf, it may be observed that it is an admitted position that the vessel was taken over on 1-1-1974 when it was performing its normal voyage of carrying cargo. It is also an admitted position that the petitioners were under contractual obligation to make further sea voyage upto the period expiring on 24-4- 1974. The vessel could not have left the port unless it would have been seaworthy which is the statutory requirement.
' We are inclined to hold that the relevant date for the purpose of the instant case is 1-1-1974 i.e, the date on which the management and control of the vessel was taken over. If the vessel on the above date was seaworthy and was used for the normal voyage, the same could have been acquired under the Act. The factum that the vessel was to be sold or was offered to be sold by the petitioners in future or was in fact offered to be sold by the respondents in October, 1974 are of no consequence. Mr. Zaidi has also referred to the following cases in order to reinforce his above submission and to further contend that every purpose cannot be a public purpose in terms of section 5(1)(a) of the Act:
(i) Hamabai Framjee Petit v. Secretary of State for India, A.l.R.1914 Privy Council page 20, in which the Government had acquired certain land under the Land Acquisition Act for erecting buildings for the use of its officials. The question arose whether the above purpose was covered by the phrase "public purpose" used in the Land Acquisition Act, and it was held by the Privy Council that the public purpose must include a purpose that is an object or aim in which the general interest of the community as opposed to the particular interests of the individuals is directly and vitally concerned and that the resumption of lands for erecting buildings for the use of Government officials is for public purpose as it will redound to public benefit by helping the Government to maintain the efficiency of its servants."
(ii) Municipal Corporation of Karachi v'. Province of Sind and others, AIR (35) 1948 Sind 16. In the above case certain Corporation's land was resumed enabling the Government to provide land to the salt manufacturers. It was contended by the Corporation that the object for which the land was resumed was not a public purpose. A Division Bench of the Judicial Commissioners of the Sind 'Chief Court repelled the above contention and held that the increase in the production of salt, a vital commodity for the life of the community, was manifestly a public purpose and the means whereby that public purpose was achieved either through the departmental action of the Government or the energy and effort of private enterprise, did not materially affect the' essentially public nature of the purpose.
(iii) Jogesh Chandra Lodh and others v. The Province of East Pakistan and others PLD 1957 Dacca 404, in which the facts were that Pakistan Jute Board requisitioned the petitioners' premises and allotted the said premises to respondent No,5, Molla Baling Agency at an annual rental of Rs,1,800 per year payable to the petitioners. The proprietor of the latter firm was a member of the Constituent Assembly of Pakistan. The above requisition was challenged before the Dacca High Court. A Division Bench of the said Court held that a purpose which furthers the general interests of the community as opposed to the particular interest of the individual must be regarded as a public purpose and that in the said case since the property was required for a private firm engaged in the business of jute, it was not a public purpose and the writ of certiorari was issued.
The above-cited cases do not support the case of the petitioners as it is evident that the ratio decidendi of the above cases seems to be that a public purpose will include a purpose which object or aim is to benefit the general interest of the community as opposed to the particular interests of the individuals, and that it is immaterial whether that public object is entrusted to a Government functionary or a private enterprise. In the instant case admittedly on 1-1-1974 when the vessel was taken over for the objects mentioned in the preamble of the Act, which are ex facie public objects. We may again observe E that the mere fact that the vessel had to be disposed of as a scrap after some period would not affect the validity of acquisition of the vessel under the Act.
(5) As regards the second submission of Mr. Zaidi that the Act is ultra vires of Articles 4, 23 and 24 of the Constitution, it may be observed that from the reliefs prayed for by the petitioners and quoted hereinabove, it is true that the petitioners have not prayed for a declaration to the effect that the Act is ultra vires of the Constitution but in the grounds of the petition, averments have been F made to the effect that the Act is violative of the provisions of the Constitution. The mere fact that the petitioners have omitted in the prayer to seek the above declaration though in the grounds such a plea has been taken, would not have debarred this Court from granting the appropriate relief even in the absence of an express prayer, if we were to agree with the contention of the learned counsel for the petitioners. We have, therefore, examined the merits of Mr. Zaidi's above submission. In furtherance of his above submissions, he has referred to the above Articles of the Constitution.
Article 4 of the Constitution guarantees equal protection of law and to be treated in accordance with law as inalienable right of every citizen. It also inter alia provides that no action detrimental to the life. Liberty, body, reputation or property of any person shall be taken except in accordance with law, whereas Article 23 enshrines that every citizen shall have the right to acquire, hold and dispose of property in any G part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest. Article 24 inter alia provides that no person shall be compulsorily deprived of his property save in accordance with law and that no property shall be compulsorily acquired or taken possession of save for a public purpose and save by the authority of law which provides for compensation therefor. It further provides that nothing in the Article shall affect the validity of the compulsory acquisition or taking over in respect of the matters enumerated in sub clauses (a) to (f). Mr. Zaidi has also referred to the following cases:
(i) Narendra Kumar and others v. The Union of India and others AIR 1960 Supreme Court 430 (V 47 C 75), in which the Indian Supreme Court while Construing Article 19(6) of the Indian Constitution has observed that in applying the 'test of reasonableness, the Court has to consider the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, and the ratio of the harm caused to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public.
(ii) Kavalappara Kottarathil Kochuni Moopil Nayar and others v . The State of Madras and Kerala and others AIR 1960 Supreme Court 1080 (V 47 C 194). In the above case the Indian Supreme Court while construing various Articles of the Indian Constitution, inter alia, observed that statement of objects and reasons is not admissible as an aid to the construction of a statute, but may be referred to for the limited purpose of ascertaining the conditions prevailing at the time the bill was introduced and the purpose for which the amendment introduced by the bill in a previous Act was made.
' Deshraj v. Akhtar Hussain, AIR 1961 Supreme Court 148 (V 48 C 20), in which the Indian Supreme Court while construing section 7(2) of the Madhya Bharat Accommodation Control Act, 1950 held that the above provision contemplated that a notice should be given but it does not make it obligatory that the notice should be issued in terms as under the Act or to be given after the Act came into force.
(iv) Alembic Chemical Works Co.Ltd. v. The Workmen, AIR 1961 Supreme Court 647 (V 48. C 99). In the above case the Indian Supreme Court while construing the provisions of the Factories Act, 1948 with reference to Article 136 of the Indian Constitution held that while construing welfare legislation the construction which furthers the policy of the statute should be preferred.
(v) Yousuf Ali Chowdhry and others v. The Province of East Pakistan and kanother, PLD 1959 Supreme Court (Pak.) 467. In the above case the Hon'ble Supreme Court of Pakistan while construing the provisions of the East Bengal State Acquisition and Tenancy Act, 1950, observed that the statutes which encroach on the rights of the subject, whether as regards person or property, are subject to a strict construction and they should be interpreted, if possible, so as to respect such rights.
(vi) Robert Chattan Ross-Clunis v. Vassos Papadopoullos and others, PLD 1959 Privy Council 84, in which the Privy Council while dealing with the provisions of the Emergency Powers (Collective Punishment) Regulations 1955, observed that statutes which encroach upon the rights of the subject should be construed strictly.
(vii) Mazhar Hussain v. Province of Punjab, PLD 1985 Lah.
394. In the above case a learned Single Judge of the Lahore High Court while dealing with a case under the Punjab Civil Servants Act read with Punjab Government Servants (Efficiency and Discipline) Rules, 1975 with reference to Article 4 of the Constitution held that a deliberate or flagrant disregard of law and relevant rules would affect power of judicial review vesting in superior Courts and that every act of Government is required to be exercised lawfully and every individual has to be dealt with in accordance with law.
6. We are inclined to hold that the above Articles 4, 23 and 24 of the Constitution have not been violated by the Act, as admittedly the objects of the Act referred, to hereinabove are ex facie public objects and the acquisition of the control and management of the maritime shipping business is in public interest and that acquisition is not without the payment of compensation. The above Articles of the Constitution themselves provide that the right to hold property is subject to reasonable restrictions which include the restriction of it being acquired in accordance with law. None of the cases referred to by Mr. Zaidi, discussed hereinabove, have any direct bearing as they propound general, propositions of law. There cannot be any cavil with the proposition that when a statute purports to encroach upon the right of an individual, the Court has to consider it strictly and if two constructions are possible, one which-favours the individual, the other which favours the State, the former is to be preferred.
' In our view, the acquisition of the management and control of the vessel was in accordance with law. It has not been complained by the petitioners that they were not paid compensation for the vessel in accordance with law.
' We are, therefore, inclined to hold that the petition has no merits and, hence, it is dismissed but there will be no order as to costs.