P L D 1969 Supreme Court 452 (PLP)

MUHAMMAD YAQUB ALI, J.‑These petitions for special leave to appeal from the judgment and order of the High Court dated the 11th June 1968, raise ‑a common question of law as to whether the Evacuee laws enacted by Pakistan were validly extended to the former State of Khairpur. The facts in each case are somewhat different, but as will be seen it is unnecessary to recapitulate them for the purpose of this order. On the 3rd of October 1947, the Ruler of Khairpur State, executed through the Chairman of Board of the Regency an Instrument of Accession with the Government of Pakistan which was accepted by the Governor‑General on the 9th of October 1947. The Schedule to the Instrument contained three subjects with respect to which the Federation of Pakistan could make laws for the State of Khairpur, namely, Defence, External Affairs and Communications. Supplementary Instru ment of Accession was executed later on, but before we take note of it the circumstances which led to the enactment of Evacuee Laws in Pakistan and India may be briefly stated. It will be recalled that large scale disturbances overtook the Sub‑Continent in the wake of Partition in August 1947. Out of fear of disturbances millions of Muslims residing in the Dominion of India sought refuge in Pakistan. Similarly, a large number of non‑Muslims residing in Pakistan migrated to India giving rise to an upheavel in the social and economic life of the two Dominions. This led to framing of Evacuee laws both in Pakistan and India with the object of resettling of refugees, repairing the economic life of the two Dominions and protection and administration of the properties and businesses abandoned by the evacuees. To begin with, the laws framed by Pakistan did not extend to acceded States, but it appears that at the instance of the Government of Pakistan similar laws were enforced by their Governments at different dates. In Khairpur the law known as the Khairpur State (Economic Rehabilitation) Act was promulgated in 1947. The Act is not before us, but its scop is evident from the Resolution No. 39 passed by the Interim Executive Council in a meeting held on 1st August 1948. "Present (1) Sahibzada Mir Ali Dino Khan, Talpur‑President. (2) J. R. Colabawala, Esqr., M. B. E. . Khan Bahadur, P. W. D.‑Member. (3) Shaikh Bahauddin, Esquire. Resolution No.

39. Read report dated 19‑7‑1948 from the Rehabilitation Officer, Khairpur State. Resolved that non‑Muslims who return back to State may be given following facilities subject to the provisions of the Khairpur State Economic Rehabilitation Act, 1947: They may be given back: (a) Their houses, if vacant, or 'which are occupied by the local Muslims; provided they return with families. (b) Shops or business premises, if vacant. (c) Agricultural lands if vacant or after the expiry of the lease period. (d) The income from the lease of their houses, shops, business premises and agricultural lands after deducting management charges which will be fixed thereafter." The text of the resolution shows that houses, shops and agricul tural lands abandoned by Hindu owners were allotted to refugees as well as to locals to maintain the economic and social life of the State. These provisions are in pari materia with the provisions of section 6 of the Pakistan (Economic Rehabilitation) Ordinance, 1948, which empowered the Rehabilitation Com missioner:‑ "(a) to repairing the dislocation in the economic life of the Dominion caused by property being abandoned or by the partial or complete closing down of businesses and unuertaking3 on account of the absence of the owners or, as the case may be, the tenants employees or workmen thereof from Pakistan by reason of the disturbances arising of the setting up of the Dominions of Pakistan and India; and (b) to securing for refugees and orderly entrance into the economic life of the Dominion." On the 14th February 1949, the Ruler of Khairpur through the Chairman of the Board of Regency executed a Supplementary Instrument of Accession containing added list of subjects with res pect to which the Federation of Pakistan could make laws for the State of Khairpur. Clause 4 in the Schedule reads: "All relations with other Dominions or countries and all matters relating thereto or having a bearing thereon." By a notification dated the 12th March 1949, published in the Gazette of Khairpur, it was declared that the Pakistan (Protection of Evacuee Property) Ordinance XVIII of 1948 and the Pakistan (Economic Rehabili tation) Ordinance No. XIX of 1948 together with the rules framed thereunder will by virtue of clause 4 of the Instrument of Accession apply to the State of Khairpur with effect from 20th October 1948. By another notification published on the 15th November 1949, it was notified that the Government of Pakistan had appointed the Chief Minister of Khairpur as the Rehabilitation Commissioner from 20th August 1948, and Mr. A. R. Kharal, Chief Judge of Khairpur State, as the Custodian of Evacuee Property, Khairpur. By a subsequent information published in the Khairpur Gazette dated the 19th October 1952, the Government of Pakistan, in exercise of the powers onferred by section 5 of the Pakistan Administration of Evacuee. Property Ordinance XIV of 1949 which had replaced Ordinance XVIII of 1948, in the meantime, delegated to the Government of Khairpur the powers to appoint Custodian, Deputy Custodian and Assistant Custodian of Evacuee Property. Similar powers were also delegated to appoint Rehabilitation Commissioner, additional Rehabilitation Commissioner, Deputy Rehabilitation Commis sioner and Assistant Rehabilitation Commissioner under the Pakistan (Economic Rehabilitation) Ordinance, 1948. At, last with that establishment of the Province of West Pakistan, on the 14th October 1955; the State of Khairpur ceased to exist as a separate entity and under section 10 of the Establishment of West Pakistan Act, 1955, all laws in force in West Pakistan immedi ately before the appointed day continued to apply to the areas and persons to whom they would have applied if that Act had not been passed. As far back as 1947‑48 the properties abandoned by the Hindu owners were allotted to the Muslim refugees and to certain locals. In 1951‑52 the Custodian of Evacuee Property, Khairpur declared properties as evacuee properties. No appeal or revision was filed by the Hindu owners against those orders. Nor did they apply under section 22 .of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949 for declaration that tile v were non‑evacuees and that the pro perties owned by them were non‑evacuees. In 1957‑58 the allotments of agricultural lands in favour of the Muslim refugees were confirmed under (lie West Pakistan Rehabilitation Scheme which created heritable rights in their favour. It was in or about March 195'7, that the Hindu owners, the petitioners herein, for the first time applied to the Assistant Custodian, Khairpur, under section 22 of the Pakistan (Administration of Evacuee Property) Act XII of 1957 which had replaced Ordinance XV of 1949 for declaration that they were non‑evacuees. Mr. S. K. Ghori who heard these applications found in favour of the Hindu owners and referred the cases to the Custodian of Evacuee Property for approval. The matter finally came before Mr. A. R. changes as Custodian of Evacuee Property, West Pakistan. Following a certain order passed by his predecessor Mr. Justice Masud Ahmad that the Evacuee Laws of Pakistan were not validly extended to the State of Khairpur the Custodian of Evacuee Property confirmed the declarations given by Mr. K. Ghori. The question whether the Hindu owners were evacuees and whether the applications made by them long after the prescribed period lay at this distance of time was not gone into. No order for restoration of the properties owned by them was, however, passed This led to the filing of two sets of writ petitions in the High Court one by the allottees who had by then been invested with absolute ownership in the properties by virtue of the provisions of the Displaced Persons (Land Settle ment) Act, 1958, and the Displaced Persons (Compensation and Rehabilitation) Act, 1958, who are respondents herein, for quashing the declarations given by the Custodian of Evacuee Property and the other by the Hindu owners who are the petitioners before us for directions to the Rehabilitation and Settlement authorities to restore to them the properties which had been declared non‑avacuee. The learned, Judges found that the Evacuee laws were covered by clause 4 is the Supplementary Instrument of Accession and dismissed the writ petitions moved by 'lb‑_ Hindu owners. The writ petitions filed by some of the allottee, were also dismissed on the view that the order of the Assistant Custodian, Khairpur, by which the Hindu owners were declared as non‑evacuee was not challenged by them in appeal of revision before the Custodian of Evacuee Property and those orders remained in the field: The learned Judges in the High Court construed the words: "relations with other Dominions" and "all matters relating thereto" or "having a bearing thereon" as wide enough to include the subject of Evacuee laws which as seen were framed both by Pakistan and India on account of large 'scale exodus of Muslim and non‑Muslim citizens from either Dominion on account of fear of disturbances which accompanied the Partition in August 1947. There is much to be said in support of this view parti cularly as the two Dominions entered into an agreement regard ing the properties abandoned by their citizens and the problems created by mass movement of population from one Dominion to the other. Reference was made in this respect by the learned Judges to the Statement of Objects and Reasons to the Government of India (Second Amendment) Act, 1948, by which section 102 of the Government of India Act, 1935, was amended to confer on the Federal Legislature the power to enact Evacuee laws. The statement begins with the words:‑ ".... In almost all its aspects the rehabilitation of refugees affects vitally the relations of Pakistan with India, above all in the settling of refugees in evacuees' houses, lands and businesses and in the adjustment between Pakistan and India of the value of the properties abandoned by evacuees from the two countries. Relations and agreements with other Commonwealth nations or a Central subject, and the perma nency of any refugee re‑settlement depends largely on the entering into and mutual carrying out of agreements between Pakistan and India." The words used in clause 4 of the Supplementary Instrument of Accession read in the context of the Statement of Objects and Reasons quoted above thus clearly made out the intention A to confer on the Government of Pakistan, the power to extend the application of Evacuee laws to Khairpur State. By these petitions the Hindu owners seek special leave to appeal on the ground that clause 4 of the Supplementary Instrument of Accession did not cover the subject of Evacuee laws. The argument canvassed by Mr. A. K. Brohi in support of the petitions proceeded as follows. The entry in the Schedule to the Supplementary Instrument of Accession clause 4 concerned only the inter‑Dominion relations and all matters relating thereto or having a bearing thereon which could not possibly extend to the subject of maintenance of Economic and Social life of Pakistan or the Administration and Protection of the properties abandoned by the non‑Muslims who on account of fear of disturbances accompanying the Partition in August 1947, had migrated to the Indian Dominion. In other words the laws made on these subjects by Pakistan did not fall within the scope of inter‑Dominion relations or matters relating thereto or having bearing thereon: He relied for this purpose on the language employed by the Constituent Assembly of Pakistan in introducing amendment to section 102 of the, Government of India Act, 1935, referred‑ to above. The amended section reads as follows:‑‑ "2.‑(1) In subsection (1) of section 102 of the Government of India Act, 1935 (hereinafter referred to as the said Act), for the words "of Pakistan is threatened, whether by war or Internal disturbance" the words "or economic life of Pakistan or any part thereof is threatened by war or internal disturbance or circumstances arising out of any mass movement of population from or into Pakistan" shall be substituted. (2) In subsection (5) of the aforesaid section, for the words "of Pakistan is threatened by way or by internal disturbance may be made before the actual occurrence of war or of any such disturbance," the words "or economic life of Pakistan is threatened by war or internal disturbance or circumstances arising out of any mass movement of population from or into Pakistan may be made before the actual occurrence of war or disturbance or circumstances" shall be substituted." It was contended that in case it was intended to confer on the Government of Pakistan power to apply Evacuee laws to the State of Khairpur then clause 4 should have been worded in similar terms and not confined to "relations with other Domi nions" and "all matters relating thereto or having a bearing thereon." There is no warrant for the construction placed by Mr: Brohi on clause 4 of the Supplementary Instrument or Accession. The principle of exposition of one Act by language of another cannot apply to the Instrument of Accession drawn up by a functionary of the Ministry of States and Frontier Regions. Indeed the primary consideration in construing an instrument is to ascertain the intention of the parties to the instrument. As seen the intention of both Government of Pakistan and the Chairman of the Board of Regency of Khairpur is manifest by the action taken by them almost immediately on the signing of the Supplementary Instrument of Assession. The Instrument was signed by the Chairman of the Board of Regency on the 14th February 1949, and within a week the Government of Pakistan by notification dated 21st February 1949, extended the Pakistan (Protection of Evacuee Property) Ordinance XVIII of 1948 and Pakistan (Economic Rehabilitation) Ordinance XIX of 1948 to the State of Khairpur with effect from the 20th October 1948. On the 1st of March 1949, the following notification was published in the Khairpur State Gazette:‑ "(i) the Pakistan (Protection of Evacuee Property) Ordinance No. XVIII of 1948, (ii) the Pakistan ( Economic. .Rehabilitation) Ordinance No. XIX of 1948. that apply to, Khairpur State With the Rules framed thereunder by virtue of clause 3 of the Instrument of Accession have come into force in the State from 20th day of October 1948 (to be separately republished). The Khairpur State Economic Rehabilitation Act, 1947, shall be deemed to have been repealed on that date." Earlier by a general notification issued by the Ministry of States and Frontier Regions, Government of Pakistan, these Ordinances were made applicable to all the States which had acceded to Pakistan with effect from the 20th October 1948. It is pertinent that not only it was announced in the Khairpur State Gazette that the aforesaid laws were made applicable to the State, the Khairpur State (Economic Rehabilitation) Act, 1947, was also repealed. It was, therefore, not a case of mere repetition of the notification issued by the Government of Pakistan as maintained by Mr. A. K. Brohi, but a positive act on the part of the Ruler of Khairpur State to implement the Evacuee laws extended to the State in pursuance to clause 4 of the Supplementary Instru ment of Accession. This brings out clearly the intention of the Government of Pakistan and the Chairman of the Board of' Regency in subscribing to clause 4 of the Instrument. The intention of the Government of Pakistan and the Ruler of the Khairpur State is further borne out by the appointment of the Prime Minister of Khairpur State as the Rehabilitation Commissioner and its Chief Judge as the Custodian of Evacuee Property under the aforesaid Ordinances by the Government of Pakistan. Later on, the power to make appointments under the Ordinances were delegated to the Ruler of Khairpur State and he exercised that delegated power till the merger of the State in the Province of West Pakistan on the 14th. October 1955. Lastly, in pursuance to the provisions of these Ordinances a large number of properties abandoned by the Hindu owners in Khairpur State were allotted to Muslim refugees from India which now stand permanently transferred in their favour. Unless the Chairman of the Board of Regency understood clause 4 of the Supplementary Instrument of Accession as providing for application of Evacuee Laws of Pakistan to the State of Khairpur his Government would not have acted in this manner. The intention behind the words: "relations with other Dominions" and "all matters relating thereto or having a bearing thereon" in clause 4 of the Supplementary Instrument of Accession thus becomes manifest. It was intended to confer b3 this clause on the Federal Legislature of Pakistan the power to enact. Evacuee laws in relation to Khairpur State. The Pakistan (Protection of Evacuee Property) Ordinance XVIII of 1948 and the Pakistan (Economic Rehabilitation) Ordinance XIX of 1948 and the various Ordinances and Acts which amended or replaced them from time to time were thus validly extended to the State of Khairpur and the High Court was rightly in setting aside the judgment and order of the Custodian of Evacuee Property dated the 18th June 1963, in which a contrary decision was given. The Petitions for Special Leave to Appeals Nos. K‑142 to K-I48ate in the result dismissed. K.B. A. Leave refused.