1990CLC560 (PLP)

8. The aforesaid Instrument of Accession executed by the Ruler of Chitral was duly accepted by the then Governor‑General of Pakistan. The respondents have placed the said Instrument as Appendix‑I with their written statement. The terms and conditions on which the said Ruler acceded to Pakistan are quoted below: "I accede to Pakistan on the same terms and conditions with regard to Defence, External Affairs and Communications as existed between me and the British Government and on the enjoyment of the same privileges I received from the British Government. Nothing in this Instrument affects the continuance of my sovereignty in and over this State or save as provided by or under this Instrument the exercise of any power or authority and rights now enjoyed by me in regard to the internal administration of my State." There is to be found a schedule with the Instrument of Accession which gives detail of the matters with respect to which the Dominion Legislature may make laws for the State of Chitral. The subjects so narrated are confined to Defence, External Affrais and Communications. However, after the death of the former Ruler of Chitral his son executed a supplementay Instrument of Accession which virtually amounted to surrender of all the powers to the Government of Pakistan. The schedule to the said supplementary Instruments enhanced the items over which Federal Legislature may make laws to an extent that nearly no subject was left out from the purview of the said Legislature. The provisions relevant to the disposal of this case are to be found in para. 11 which reads as follows:‑ "xi. "I further declare that the subsidies which I have been receiving from the Government of Pakistan will now be paid into the State Treasury and shall form part of the State Revenues, in lieu of the privy purse which shall be determined with due regard to my requirements under a separate agreement." Article I of the Agreement so executed declares the entitlement of the Mehtar of Chitral to receive annually from the revenue of the State of Chitral for his privy purse a sum not exceeding rupees ninety thousand and rive hundred free of all taxes as detailed in the schedule annexed to this agreement. Rest of the Articles deal with the nature of the privy purse and its mode of payment. For other purposes clause 2 of Article II is significant which is reproduced below:‑ "His Highness the Mehtar shall furnish to the Government of Pakistan within three months of the date of this Agreement lists of all the movable and immovable property held by him as such private property." There are following provisions of clause 3 of Article II of the Agreement which may have repercussion on the outcome of the case before us:‑ "

3. If any dispute arises as to whether any item of property is the private property of his Highness or State Property, it shall be decided by the Governor‑General of Pakistan whose decision shall be final and binding on all concerned." It may be pointed out here that by the aforesaid Supplementary Instrument of Accession the Mehtar of Chitral declared that the Constitution of Pakistan to be framed by the constitutent Assembly of Pakistan would be the Constitution for his State. Consequently, on 21st day of February, 1966 another agreement was executed between the President and the Mehtar of Chitral who was then a minor and acted through the regent. This was a declaration as a sequal to the provisions of Supplementary Instrument of Accession to the effect that the Mehtar or the successor "shall bear true faith and allegiance to the Islamic Republic of Pakistan, conscientiously discharge the obligations of a citizen of Pakistan under the Constitution and the law ....". Thus the status of the Mehtar of Chitral as citizen was recognized and acknowledged.

9. To the above brief historical perspective certain legislative measures taken by both the Federal and Provincial Governments may also be added to complete the picture of Mehtar's status in Pakistan. Regulation I of 1969 was promulgated by the then Governor of erstwhile Province of West Pakistan which took away the exercise of any powers or performance of any function with respect to any matters falling within the legislative competence of the Provincial Legislature and relating to the administration of certain specified territories, namely, the Tribal Affairs comprising the former States of Dir, Swat and Chitral from the Rulers of such territories. The provisions of the said Regulation also transferred services of the employees of the former States to the Government of West Pakistan. But the most important provisions of the said Regulation in relation to the case in hand are laid down in its paragraph 5 which is re‑produced below:‑

5. Continuance of taxes.‑‑The proceeds of all taxes, fees, tolls, import and other moneys payable under or in accordance with any law in force immediately before the commencement of this Regulation, or any customs or usage having the force of law, towards the revenues of the administration of the specified territories, commonly known as the revenues of the State of Dir; the State of Chitral or the State of Swat, shall be payable towards the revenues of the Province of West Pakistan and all moneys so payable towards the public fund or any other fund of any such State shall be payable towards such fund of the Government of West Pakistan as the Provincial Government may direct. Thus it will be seen that by Regulation I of 1969 Rulers of former States of Dir, Swat and Chitral were further deprived of their administrative and financial powers. The aforesaid legislative measure is still in the field and none of the aforesaid Rulers has questioned the same. By a Notification dated 13th November, 1971 an Inquiry Commission was appointed by the North‑West Frontier Province Government to determine the private property of the Rulers of former States of Dir, Swat and Chitral and the property which is to be declared‑ as State property. Later on the N.‑W.F.P. Government deriving its powers from Distribution of Property (Chitral) Regulation 1974, Regulation 11 of 1974 specified certain property given in the schedule of a Notification dated 30th July, 1975 as private property of Saiful Mulk Nasir, ex‑Mehtar of Chitral. Similarly the said Government declared certain other property as to be the State property. In para. 5 of the aforesaid Regulation of 1974 it is provided that the State property shall vest and shall be deemed to have vested in the Provincial Government on or from the date of coming into force of the said Regulation. The forests of Chitral are included in the list of State property. The disputed 100 trees are not mentioned in the schedule of the aforesaid Notification pertaining to the private property of the ex‑Mehtar of Chitral. 9‑A. There is yet another piece of legislation significant for this case called President Order 15 of 1972 (Rulers of Acceding States (Abolition of Privy Purses and Privileges) Order, 1972). In the interpretation clause of the said Order, privy purse has been defined to include any allowance whatever payable to a Ruler under any Instrument of Accession, or other agreement (para. 3(b),. After abolishing the privy purses and withdrawing other privileges of the Rulers of the Acceding States, the Central Government was empowered to grant in lieu of the privy purse and other privileges of a Ruler so abolished, maintenance allowance the standard of which has been laid down in para. 5 of the said Order. Para. 7 of the said Order further empowers the President of Pakistan to grant a Ruler any privilege, facility or concession for such period and on such conditions as he may determine. So at least since the prompulgation of Order 15 of 1972 on 18‑4‑1972, the President of Pakistan could in his own discretion grant a Ruler any privilege, facility or concession. The privy purse which also included any other allowance under any Instrument of Accession or other agreement was abolished. 9‑B. We have exhaustively dealt with the Instrument of Accession and other agreements flowing here from executed by the Ruler of Chitral and his successor and have also examined the administrative actions and legislative measures adopted by the competent authorities in order to determine the nature of the demand of the petitioner to the entitlement of 100 trees, or an equivelant value, annually from the forest of Chitral. There is no doubt, that the agreement executed on 19‑3‑1953 between the then Governor‑General of Pakistan and the then Mehtar of Chitral with regards to his privy purse, other allowances and his private property was the direct result of Instrument of Accession signed by the said Mehtar and, therefore, is to be read as part of the said Instrument. It is also not disputed that the private property of the Ruler of Chitral as approved by the President of Pakistan was enlisted in detail in the above‑quoted communication of the Central Government dated 3‑12‑1961. The provision of 100 trees per annum from the forest of Chitral is also given in the said communication. But the items specifically given as private property of the Ruler did not include the aforesaid 100 trees. A paragraph was added in the said communication which reads as follows:‑ His Highness, the Mehtar of Chitral may also be allowed 100 trees per annum out of timber exported from Chitral." It is also pertinent to note here that the aforesaid notification issued by the N.‑W.F.P. Government with regard to the private property of the Ruler also did not include the aforesaid 100 trees as his private property. As a matter of fact, the entire forest of Chitral was declared as State property. Obviously, the said 100 trees cannot be termed as part of the privy purse of the Rules as the same has been specifically defined and determined in the aforesaid agreement of 19‑3‑1953.

10. The above‑quoted para. of the communication dated 3‑11‑1961, with regards to the grant of 100 trees per annum to the Ruler patently reflects by the language which is used therein that apart from the private property of the Ruler, he is to be allowed 100 trees per annum out of timber exported from Chitral. The word "allow" lends support to the argument of the Government of N.‑W.F.P. that the said 100 trees was an allowance made to the Ruler and could not be called his private property. This has been made further clear by the subsequent notification made by the Provincial Government on the recommendations of Dir, Swat and Chitral Land Enquiry Commission with regards to the private property of the Ruler. Another significant part of the above‑quoted contents of the communication of 1961 is completely ignored by both the parties, i.e, that 100 trees per annum are to be allowed to the Ruler "out of timber exported from Chitral". This means that no specific part of the forest consisting of 100 trees at any given time was earmarked for the Ruler but he was allowed a number of trees per annum from the timber which is meant for export from Chitral. Such a provision could hardly invest the Ruler with any right over the standing trees in the forest.

11. There is yet another aspect of the case. After the passage of President Order 15 of 1972, the privy purse and privileges which, as stated above, included any allowance whatever payable to a Ruler were abolished. It appears that wittingly or unwittingly the Ruler or his successor has since been negotiating with the President of Pakistan time and again as narrated above for the fixation of an allowance in lieu of disputed hundred trees. The Ruler and his successors have been conceding the fact that an allowance nearly equivalent to the handred trees shall be acceptable to them and at times they accepted the same. In such a situation, the claim of hundred trees per annum per se can hardly be called a claim to private property.

12. We, therefore, find that the disputed hundred trees to be ear‑marked annually for the petitioner are not the private property of the Ruler of Chitral. As such, the assertion of the petitioner that his Fundamental Rights as enshrined in Articles 23 and 24 of the Constitution of Pakistan are being violated cannot be entertained. However, the Communication of 1961, which carries the stipulation with regard to hundred trees to be earmarked annually for the petitioner from the timber exported from Chitral has been subject of recognition by the respondents from time to time and is still being acted upon by them even if its terms are negotiated and disputed by the parties at times. We, therefore, find that such a stipulation, so long it has not been specifically withdrawn, has to be honoured in the light of the various decisions taken from time to time by the. Federal Government in consultation with the petitioner.

13. We, therefore, issue direction only to this extent that the commitment made in the aforesaid Communication of 1961 is to be acted upon in the light of various decisions taken by the President of Pakistan by mutual consultation with regards to the mode of its implementation. Rest of the prayer of the petitioner is not accepted. There shall, however, be no order as to costs. Order accordingly. M.BA./940/P