P L D 1965 (W (PLP)

(a) That clause (5) of section 5 of the said Ordinance had not been complied with inasmuch as the District Magistrate had not communicated to the petitioner within fifteen days from the date of the service of the order, the grounds on which the order had been made, and he, therefore, could not make representation to the Government; and (b) that the petitioner was ordinarily a resident of Lahore District an his exclusion and removal from that district by this order s in contravention of the proviso to clause (4) of section 5.

3. In support of the first contention it was urged that it was incumbent upon the authority, making the order to communicate the grounds on which the order had been made as soon as possible and not later than fifteen days of the service of the order. Clause (5) of section 5 is reproduced as under:‑ "Where an order has been made under subsection (1), the authority making the order shall, as soon as maybe but nor later than fifteen days from the date of service of ‑the order, communicate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so. Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against public interest to disclose." The grounds of externment are communicated to the person concerned to enable him to make representations against his detention to the Government. The very wordings of this clause shows that the Legislature intended this to be done without any delay and its urgency is emphasised by the fact that they are to ; be supplied "not later than fifteen days from the service of the order." The Legislature expressly directed that such a person be afforded the earliest opportunity of making a representation against the order. The order was served on the petitioner on the 9th of June 1963. The grounds should have been supplied to him not later than the 25th of June, 1963. What, however, happened was that these grounds were not prepared till the 6th of July 1963, and they were never communicated to the petitioner. On behalf of the respondent an attempt was made to explain the cause of delay by stating that the petitioner had been extended from the District of Montgomery as well and his whereabouts thereafter were not known. This explanation is not convincing. The petitioner was externed from Montgomery on the 10th of July 1963, more than a month after the order of externment from Lahore District was served on him on the 9th of June 1963. The grounds moreover were prepared on the 9th of July. They were identical with the facts stated in the order, dated the 31st of May 1963. The grounds, therefore, could have been served along with the order and it was all the more desirable to do so in view of the fact that the petitioner had been externed from the district and there was no restriction on his movements in other parts of the country. At any rate, to ensure that the provisions contained in section 5(5) of the Ordinance were complied with, the person effecting the service of the order on the petitioner should have been directed to find out from him in writing about his future place of residence. This was not done. The District Magistrate, Lahore, had, all the same, been informed about the address of the petitioner telegraphically by the Tehsildar, Kasur, on the 27th of June 1963. There was, therefore, no reason to further delay the preparation of the grounds or the delivery of the same to the petitioner. It was only on the 10th of July 1963, that the grounds were forwarded to the District Magistrate, Montgomery, for 'service on the petitioner. It seems that on receipt of these grounds the District Magistrate, Montgomery, thought also of an earlier letter of the District Magistrate, Lahore, dated the 29th of June 1963, asking him to extern the petitioner from his District as well. He, therefore, simultaneously ordered on the 10th of July 1963, externment of the petitioner from the District of Montgomery and by another order directed the Superintendent of Police, Montgomery, to deliver a copy of the grounds to the petitioner. It appear that the petitioner was served with the order of externment from Montgomery District before the Superintendent of Police could deliver to him the grounds received from District Magistrate, Lahore. The grounds, in these, circumstances, could not be communicated. It would thus be clear that no serious attempt was made for complying with the provisions contained in clause (5) of section

5. The maximum period of expulsion or removal unless extended by the Government' is three months. If the provisions of section 5 are not complied with in its letter and spirit, the remedy given to an aggrieved person for making representation to the Government can be rendered completely nugatory. The Ordinance infringes drastically on the liberty of the subject and its provision's are an inroad on the liberty of individuals. A special vigilance by the Court is called for to protect that liberty and it should, therefore, see that the provisions of the Ordinance are strictly complied with. In such cases not only must the law be strictly construed but the Court must take care to gee that every condition which the law lays down has been fulfilled. Doubtless, the petitioner remained ignorant of the grounds and he, therefore, could; not avail of the statutory right of representation against the orders. Since the provisions of the Statute under which the order was made were not complied with and interpreted with the strictness which is required in such cases, the order of removal cannot validly operate against the petitioner. The impugned order on this short ground merits to be quashed.

4. The next question which needs determination is whether the District Magistrate could pass an order excluding or removing the petitioner from the district. Section 5, under which the action was taken reads as :‑ "

5. Power to control suspected persons :‑(I) Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may by order in writing, give any one or more of the following directions, namely, that such person‑ (a) shall not enter, reside or remain in any area that may be specified in the order; (b) shall reside or remain in any area that may be specified in the order: . . . . . . . . . . . . (4) An order under clause (a) of subsection (1) made by Government may specify as the area to which the order relates the whole Province or any part thereof, and an order made by the District Magistrate may specify as such area the whole district or any part thereof:" "Provided that no such order made by Government shall direct the ‑exclusion or removal from the Province of any person ordinarily resident in the Province and no such order made by the District Magistrate shall direct the exclusion or removal from the district of any such person ordinarily resident in that district." It is clearly laid down in the proviso that a person who is ordinarily a resident of the district cannot be excluded or removed from the entire district by the District Magistrate. The learned Advocate‑General maintained that the petitioner had been removed from the District under sub‑clause (c) of clause (1) of section 5 only and contended that his case was not covered by the proviso. The proviso, he argued, should be read only with reference to clause (4) which immediately preceded it and is restricted in its application to that clause only and cannot extend in its operation to the whole section. The case of the learned Advocate‑General is that the proviso to clause (4) is applicable to the situation contemplated in sub‑clause (a) of clause (1), namely, the order "not to enter, remain or reside" and that being so if an order is passed against a person directing him to remove himself from the district which can be done only under sub‑clause (c) of clause (1) of section 5, it will be valid notwithstanding the proviso. The question which falls‑ for determination is whether the proviso is applicable only to a situation provided for in clause (4) of section 5 which refers to an order passed under sub‑clause (a) of clause (1) or that it applies also to a case of removal covered by sub‑clause (c) of clause (1). Doubtless, it is a rule of interpretation that the appropriate function of a proviso is to restrict or modify the enacting clause or preceding matter and it should be confined to what precedes. Ordinarily, a proviso is designed to restrict rather than to enlarge the provision which is appended, but this is not an inflexible and absolute rule and it will not be applicable where the intention that it will apply to some other matter is apparent or where in so construing it some repugnancy or absurdity occurs. I may with advantage quote the observations of Nolroyd, J., in R. v. Newark Inhabitants (107 ER 656, 3B & Cat p. 71):‑ "The question whether a proviso in the whole or in part relates to and qualifies, restrains or operate upon the immediately preceding provisions only of the statute, or whether it must be taken to extend in the whole or in part to all the preceding matters contained in the statute, must depend, I think, upon its words and import and not upon the division into sections that may be made for convenience of reference in the printed copies of the statute." The proviso to clause (4) applies only in the case of a person who is ordinarily a resident of a Province or a District. The Government can exclude or remove a person from the Province and the District Magistrate can take a similar action in his district, but they cannot so direct a person who is ordinarily residing within the Province or the District as the case may be. Sub‑clause (a) deals with "exclusion" and sub‑clause (c) deals with "removal". If an order is passed either under sub‑clause (a) or sub‑clause (c) against a person who is ordinarily a resident of a Province or a District, the proviso being specific in its operation in such cases, will apply to him in spite of the fact that the preceding sub‑clause (4) makes no mention of sub‑clause (c). The same intention is clear also from the context in which the "proviso" is used. Under sub clause (a) the District Magistrate can pass an order directing a person not "to enter" or "to reside" or "to remain" in the whole of the district. The direction as "not to enter" means to exclude and the one "not to reside or remain" means to remove. Residence means a stay, temporary or otherwise and the term' "remain" may apply in those cases where a person may have entered but before lie may have started residing there an order is passed directing him not to remain at that place. In the context, it appears that sub‑clause (a) as to the directions "not to reside" or "not to remain" (I have omitted the direction "not) enter"), applies only in those cases where the person is not ordinarily a resident of the Province or the District. It is obviously for this reason that the Legislature did not feel the necessity to further provide for a bar to his return. This interpretation finds support from the wording of sub‑clause (c) of clause (1) whereby the Governor or the District Magistrate can order a person to remove himself from and not "to return to any area that may be specified in the order." Under this clause the order is not a removal simpliciter but also that the person concerned is not to return.. Animus revertendi is an incident of a permanent residence or the ordinary residence of a person. If a person is ordinarily residing at a place and he is ordered to remove himself from there without any other direction, he is bound to return to his place of ordinary residence because he always will have in such cases an intention to revert. It was for this reason that the Legislature thought it expedient to direct such a person who was likely to act in any manner "prejudicial to public safety" or the "maintenance of public order" not only to remove himself but also not to return." Thus the directions "not to reside" or "not to remain" (I have intentionally omitted the words "not to enter"), used in sub‑clause (a) deal with a situation which is different from the one as contemplated in sub‑clause (c) of clause (1) of section

5. The latter applies to persons who are ordinarily residing in a district or province the former applies to persons other than these. This, however, does of mean that sub‑clause (a) of clause (i) does not at all apply persons who are ordinarily residents of a Province or a District. It may be noticed that a direction in sub‑clause (a) viz., "not to enter" applies to both cases of ordinary residents and‑others. In the case of an ordinary resident where such a person happens to be outside the Province or the District at a given time and the appropriate authority for the purposes of the section does not wish him to come back, the order can be passed directing him not to enter and this will mean his exclusion from the Province or the District as the case may be. It is, in these circumstances, that one has to consider the application of the proviso. What the proviso qualifies is that the Government or the District Magistrate though they can exclude a person or order him to remove himself from the whole Province or the District, they cannot do so in the case of those persons who are ordinarily residing in the Province or the District. The Government or the District Magistrate may, therefore, order an ordinary resident not to enter the Province or the District, as the case may be, but they cannot exclude him from the whole of the Province or the District. He will, therefore, be permitted to enter at least some part of the Province or the District. If the proviso is not to apply to cases covered by sub‑clause (c), the Government or the District Magistrate can on his entry, again pass an order directing him to remove himself from the whole Province or the District and not to return to it at all. The result will be that whereas the Government or the District Magistrate, by acting under sub‑clause (a), could not exclude him from the whole of the Province or the District, they by acting under sub‑clause (c) could remove him from the whole Province or District by prohibiting him from returning, Such a situation will not only be anomalous but is bound to lead to absurd results. The proviso, therefore, according to its plain meaning and in the context of other provisions of the Ordinance, is capable of only f one interpretation that it applies to orders passed both under sub‑clauses (a) and (c) of clause (1) of section 5.

5. It may, however, be noticed that the impugned order is both under sub‑clauses (a) and (c) of clause (1) of section

5. The relevant portion of the order reads as under:‑ "I . . . do hereby direct that the said Hakim Ali shall remove himself forthwith from the limits of the Lahore District and shall not enter, remain or reside in the jurisdiction of Lahore District for a period of three months." The words shall not enter, remain or reside etc., are verbatim reproduction of clause (a). Assuming, therefore, that the proviso was applicable to clause (a) of subsection (1) only, then too the present order being also one under sub‑clause (a) of clause (1) of section 5, is illegal: without lawful authority and of no legal effect.

6. The petitioner is admittedly an ordinary resident of Lahore District. The impugned order since it orders his removal from the whole of the District of Lahore is beyond the scope of section 5 and hence without lawful authority and of no legal effect.

7. The petition is accepted. A. H. Petition accepted.