P L D 1954 Federal Court 243 (PLP)

ABDUL RASHID, C. J.

The State of Amb through its Ruler Nawab Sir Muhammad Farid Khan is the plaintiff in this case. The Federation of Pakistan is the first defendant and the N.-W. F. Province is defendant No.

2. The plaintiff's claim is that the State of Amb consists of two parts. One of the parts is known as Upper Tanawal and is situate on the eastern bank of the river Indus, the other part is known as Amb and is situate on the western bank of the same river. By means of an Instrument of Accession, dated the 4th day of December, 1947, the State of Amb, consisting of both of these parts acceded to the Federation of Pakistan. As a result of this Instrument of Accession, the first defendant was entitled to exercise full control and authority, both legislative and executive, in respect of External Affairs, Defence and Communications, over the whole of the State of Amb, including Upper Tanawal, but the first defendant had no further control and authority whatsoever over the internal administration of the Amb State. The first defendant has, however, passed a large number of orders, rules, regulations, directions, and notifications, applicable to the District of Tanawal which are null and void and are. in particular, beyond any powers conferred or the defendants by the Instrument of Accession. The plaintiff therefore, prays that this Court may grant him declarations to the effect that Upper Tanawal is and has always been a part of the Amb State and that the defendants have no right to exercise any legislative and executive powers in this territory, except legislative and executive powers relating to External Affairs, Defence and Communications. The substance of the allegations of the defendants is that the territory known as Upper Tanawal never formed a part of the State of Amb and that the orders, rules, notifications, etc., issued by the defendants in respect of the District o Tanawal cannot therefore be challenged by the plaintiff. After hearing counsel at length on the 18th of December 1953, this Court framed the following preliminary issue .- "ASSUMIMG UPPER TANAWAL TO FORM A COMPONENT PART OF THE AMB STATE, HAS THIS COURT JURISDICTION TO ENTERTAIN THE PRESENT SUIT". On behalf of the plaintiff, it was contended by Mr. MacKenna that the present suit falls within the purview of section 204 of the Government of India Act, 1935, and this Court has therefore power to grant the plaintiff the several declarations asked for. The relevant provisions of section 204 are in the following terms :- "204. (1) Subject to the provisions of this Act, the Federal Court shall, to the exclusion of any other Court, have an original jurisdiction in any dispute between any two or more of the following parties, that is to say, the Federation, any of the Provinces or any of the Federated States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to

(a) a dispute to which a State is a party, unless the dispute- (i) concerns the interpretation of this Act or of an Order in Council made thereunder, (before the date of the establish ment of the Federation, or of an order made thereunder on or after that date, for the interpretation of the Indian Independence Act, 1947, or of any order made thereunder), or the extent of the legislative or executive authority vested in the Federation by virtue of the Instrument of Accession of that State ; " The submission made by the counsel was that the word "extent" in clause (i) covers both the degree of the legislative or executive power vested in the Federation as well as the place or the territory wherein the legislative or executive authority of the Federation is to be exercised. It was con tended that if Upper Tanawal is assumed to be a part and parcel of the Amb State, the principal question for determina tion would be whether in respect of the Amb State the legislative or executive authority vested in the Federation has been exceeded in any manner. If, after an adjudication on the merits, it is found that Upper Tanawal is not a part and parcel of the Amb State, this Court may have no jurisdiction to determine whether legislative or executive authority vested in the Federation by the Instrument of Accession has or has not been exceeded, but so long as Upper Tanawal is regarded as a part of the Amb State, this Court has jurisdiction to decide the question referred to above. According to the plaintiff, this Court is not solely concerned with the decision of the question whether Upper Tanawal is or is not a part of the Amb State, but it has a further function to perform, and that is, assuming Upper Tanawal to be a part and parcel of the Amb State, whether the Federation has interfered in the administration of this territory in violation of the terms of the Instrument of Accession. By the Instrument of Accession, the Ruler has only surrendered certain subjects to the Federation of Pakistan. The question which falls for determination is whether in respect of the whole of the State of Amb, including the district of Upper Tanawal, the Federation has exercised legislative or executive powers in respect of subjects other than those , mentioned in the Instrument of Accession. Reference may be made to section 99 of the Government of India Act which lays down that "subject to the provisions of this Act, the Federal legislature may make laws for whole or any part of Pakistan and a Provincial legislature may make laws for the Province or for any part thereof." The marginal note to this section, as given in the Government of India Act, is as follows : "Extent of Federal and Provincial Laws." The word "extent" in this section obviously means both the territories to which certain laws apply as well as the powers which the Federal and Provincial Legislatures can exercise in respect of the whole of Pakistan or any Province thereof. The marginal note to section 101 of the Act also is as follows "Extent of power to legislate for States. It was contended that the word "extent" is used in a comprehensive sense in this Act and denotes both the limits of the legislative or executive authority, as well as the territory where such legisla tive or executive powers are to be exercised. The principal argument advanced by the Advocate General of Pakistan was that the dispute between the parties is a boundary dispute that the demarcation of boundaries between the acceding States and the Federation of Pakistan is a "political act" or an "Act of State", and that any grievance that the plaintiff may have in respect of such an act can only be redressed if the plaintiff approaches the Central Government of Pakistan with a representation or petition, and that this Court has no jurisdiction to interfere in such a matter. Our attention was invited to the definition of "Indian State" in section 311 of the Act : -- " Indian State means any territory recognised by the Federation as being such a State whether described as a State, an estate, a jagir, or otherwise." It was contended that the district of Upper Tanawal was not recognised as territory of a State at the time of or prior to the signing of the Instrument of Accession, and that therefore the Ruler of Amb could not claim this territory as an "Indian State". This contention, in my opinion has no force whatever. It begs the question which forms the subject -matter of the present litigation. The case of the plaintiff 1s that the Instrument of Accession refers, to the State of Amb, and that the State of Amb at the time of the signing of the Instrument of Accession consisted of territories on the eastern bank as well as the western bank of the river Indus ; the territory on the eastern bank being known as Upper Tanawal, and the territory on the western bank being known as Amb. It appears to me that in the present case the question of the jurisdiction of this Court is dependent upon the determination of the principal question of fact raised in this litigation, that is, whether Upper Tanawa' is a part of the Amb State. If it is assumed to be a part of the Amb State, we undoubtedly would have jurisdiction to takele cognizance of this suit. If ultimately Upper Tanawal is held not to be a part of the Amb State, the present dispute would cease to be a dispute between the Federation, any of the Provinces, or any of the Federated States of Pakistan within the meaning of section

204. There are two parties to the Instrument of Accession, that is, the Ruler of the Amb State and the Federation of Pakistan. The boundaries of the Amb State are not men tioned in the Instrument of Accession. The words "Amb State" as they occur in the Instrument of Accession require interpretation in this case. It cannot be said that we have jurisdiction to determine whether legislative or executive authority vested in the Federation by the Instrument of Accession has or has not been exceeded, but that we have no jurisdiction to determine what the "Amb State" means in this Instrument. The Federation of Pakistan cannot by a unilateral act of its own claim to interpret the words 'Amb State' as they occur in the Instrument of Accession. In my opinion, the interpretation of the Instrument of Accession is solely the function of this Court. I, therefore, hold that if Upper Tanawal is assumed to form a component part of the F Amb State, this Court has jurisdiction to entertain the present suit. It was contended on behalf of the plaintiff that the costs of the two hearings, when the question of jurisdiction was argued, should be separately awarded to him. I am not prepared to accept this contention. The cost of these hearings shall be costs in the cause. A. H. Preliminary issue decided.