P L D 1954 Sind 273 (PLP)

VELLANI, J.‑These are appeals against two orders of Muhammad Bukhsh, J under Order 7, Rule 11 (d) rejecting the plaints in two suits as disclosing no cause of action against the Federation of Pakistan. Each appellant sought a declara tion that an order of the Chief Commissioner of Karachi relating to his bus operating at Karachi was ultra vires and illegal, and an injunction restraining the execution of the order against him. The learned judge accepted the respon dent's contention that the suits should have been brought against the Chief Commissioner's Province of Karachi. Subsection (1) of section 290‑A of the Government of India Act, 1935 (hereinafter called the Act) enables the Governor‑General to demarcate for the purposes of the Capital of the Federation, an area forming part of a province and to make provision among other things for its government and administration, with respect to the laws which are to be enforced in the area and other supplemental, incidental or consequential matters. Sub‑section(5) of that section says that the executive authority of the Federation extends to the Capital of the Federation, and any order made under the subsection may be controlled or superseded by an act of the Federal legislature. Under Article 5 of the Pakistan (Establishment of the Federal Capital) Order 1948 made on 23rd July 1948, the executive authority of Karachi is to be exercised by the Governor‑General either directly or to such extent as he thinks fit through an Administrator, and, by a notification of the same day under that Article, the Governor‑General delegates his powers upon the Administrator (except those it mentions in the proviso) "Subject to such general or special instructions as may from time to time be given to him by the Central Government." The Pakistan (Establishment of Federal Capital) (Amend ment) Order 1952 dated 28th April 1952 makes Karachi a Chief Commissioner's Province, and in Article 5 of the Order of 1948 substitutes the word "a Chief Commissioner" for the words "an Administrator" Notification dated 21st October 1952 gives to the Chief Commissioner of Karachi in respect of the Chief Commissioner's province of Karachi, all powers and duties of the Government of Sind "subject to such general or special instructions as may from time to time be given to him by the Central Government, and after conferring on him certain powers in respect of gazetted posts, says that the exercise of them shall be subject to such general or special instructions as the Governor‑General may from time to time see fit to give in this behalf. The orders claimed to be ultra vires are therefore acts of the Governor‑General performed indirectly through the Chief Commissioner of Karachi. Under section 176 of the Act, the Federation may sue or be sued by the name of the Federation of Pakistan and a Provincial Government may sue or be sued by the name of the Province. Subsection (3) of section 46 of the Act says that the expression "province" in the Act means "a Governor's province" unless the context otherwise requires, and the word "Provincial" is to be construed accordingly, so that section 176 enables the Government of a Governor's Province to sue and be sued in the name of the Governor's Province. Under subsection (2) of section 49 of the Act the executive authority of a Governor's Province extends to the matters with respect to which the legislature of the Province has power to make laws, and this provision stands in contrast, with subsection (3) of section 94 of the Act under which al Chief Commissioner's Province is to be administered by the acting to such an extent as he thinks fit, through a Chief Commissioner to be appointed by him, and also with subsection 5 of section 290‑A of the Act which extends the executive authority of the Federation to its Capital and makes it subject to the control of an act of the Federal Legislature. A Chief Commissioner's Province and the Capital of the Federation have no legislature of their own. Under subsection (4) of section 100, it is the Federal Legislature which has power to make laws with respect to matters enumer ated in the Provincial Legislative List, except for a Governor's Province. An examination of the provisions mentioned leads to the conclusion that the orders claimed to be ultra vires are acts of the Governor‑General done indirectly through the Chief Commissioner of Karachi, and that the Federation may be sued in respect of them, and that these orders are not acts of a Provincial Government, that is to say, the acts to the executive authority in a Governor's Province. It is said that section 79 of the Code of Civil Procedure 1908, requires the Province to be named as plaintiff or defendant in a suit by or against the Provincial Government and that these suits are truly suits by or against a Provincial Government. The definitions of the term "Central Govern ment" in clause 8 (a) and (b) of the term "Province" in clause 43 and of the term "Provincial Government" in clause 43 a case (a) of section 3 of the (Central) General Clauses Act are called in aid to show that although the orders claimed to be ultra vires are the acts of the Governor‑General done indirectly through the Chief Commissioner of Karachi, yet they are acts in the sphere .and Governance of a Provincial Government and therefore the suits must be brought against the Chief Commissioner's Province of Karachi. We think it improper to remove section 79 of the Code of Civil Procedure 1908 from its true context and to interpret it in isolation from or in conflict with subsection (1) of section 176 of the Government of India Act 1935, which declares the right to sue and the liability to be sued of the Federation of Pakistan and a Governor's Province. In making this provision, the existence of a Chef Commissioner's Province was present in the mind of the Legislature as Part IV of the Act shows, and we do not see that the context requires the term "Provincial Government" in subsection(1) of section 176 of the Act to be construed to mean the Government in a Chief Commissioner's Province as well. The Central General Clauses Act, cannot be used to interpret the Government of India Act, 1935. The orders claimed to be ultra vires are the acts of the Governor‑General done indirectly through the Chief Commissioner of Karachi, and if ultra vires, they furnish causes of action to the appellants against the Federation of Pakistan. For these reasons we allow the appeals and set aside the orders rejecting the plaints with costs to each appellant. Under section 250 of the Act, we certify of our own motion that these two appeals involve a substantial question as to interpretation of the Government of India Act 1935. A. H. Appeals allowed.