P L D 1958 (W (PLP)

(a) Baluchistan States Union (Interim Constitution) Act, 1952, S. 59‑Notification No. 26, dated 9‑3‑1955 issued by the Secretary to Council of Rulers, Baluchistan States Union is Ordinance though word "ordinance" is not used therein. (b) Baluchistan States Union (Interim Constitution) Act, 1952, Ss. 53. & 59‑Difference. A perusal of section 53 with section 59 of the Interim Constitution would show that there is a great difference between the two. Section 59 was applicable only so long as the Legislative Assembly had not come into being while section 53 came into operation only after the Legislature of the Union had come into being. Moreover, the action taken by the Council of Rulers for the peace and good government of the Union is quite different from an action taken by the Council of Rulers in the event of emergency. (c) Government of India Act, 1935, Ss. 5 (1) (bb) and 95‑A S. 95‑A applies to areas included in Federation. Section 95‑A of the Government of India Act, 1935 would apply to the areas included in the Federation under clause (bb; of section 5 of the Act. (d) Establishment of West Pakistan Act, 1955, S. 10‑Law applicable to areas of former Baluchistan States Union‑Continues to be applicable. (e) Court Fees Act (VII of 1870)‑Application to Baluchistan States Union. Yahya Bakhtiyar as amicus curie. Karam Elahi Khan for the State. INAMULLAH J.--‑ This appeal came before my Lord, the Chief Justice, on the 7th August, 1958, and the question before him was, whether the Court Fee of Re. 1 which has been paid in respect of the appeal under section 19 of the Kalat Civil Procedure Code is sufficient. The office, relying on a judgment of Constantine, J. dated in 2nd May 1958, contended that the Court Fees Act of 1870 has become applicable to the Baluchistan States Union by virtue of notification No. 26 dated the 9th March, 1955, issued by the Secretary to the Council of Rulers. The appellant therefore must make good the deficiency in court fee according to the Court Fees Act of 1870. Kayani, C. J., by his order dated the 7th August, 1958, ordered that the matter be fixed for hearing before a Division, Bench after notice to the State This matter came before us on the 25th August 1958, when the learned advocates for the petitioners and the State stated that it would be necessary for the disposal of this matter to have a copy of the instrument of accession of Baluchistan States Union and a copy of the notification dated the 9th March 1955 by Council of Rulers from the Commissioner of Kalat. We adjourned the hearing to the 4th September, 1958 and ordered the Commissioner of Kalat to supply the copies of these two docu ments. We have the necessary documents before us now. Mr. Muhammad Ashraf, the learned advocate for the appellants in support of his argument that the notification dated the 9th March 1955 issued by the Secretary to the Council of Rulers, B. S. U. was invalid, contended :‑ (1) That the notification in question was not an ordinance within the meaning of section 59 of the Baluchistan States Union Interim Constitution) Act, 1952. (2) That, at any rate, even if the said notification was an ordinance, the same was invalid for want of sanction by the Governor‑General under section 53 of the Baluchistan States Union (Interim Constitution) Act of 1952. (3) That the legislative power of the Baluchistan Union is confined to the matters given in Parts II and III of the 2nd Schedule of the Baluchistan States Union (Interim Constitution) Act, 1952. Item 54 of Part II and Items No. 25 & 36 of Part III of the 2nd Schedule of the Baluchistan States Union Interim Constitution Act, 1952 specifically take away the power of the Union Legislature to legislate on Court fee. The said notification therefore, even if ordinance is bad in law. (4) That it was only the Governor‑General, who could extend any Federal Law to the Baluchistan States Union and the Court Fee Act, being a Federal Law, could not be extended by the Council of Rulers. (5) That under para (iii) (a) of the Instrument of Accession of the B. S. U. it was only the Governor‑General, who could extend any Federal Law to the Union. (6) That with the merger of B. S. U. with West Pakistan, the notification passed by virtue of S. 59 of the Interim Constitu tion was no longer applicable. We propose to deal with these points separately :‑ We have heard Mr. Karam Elahi for the State, Mr. Fazil for the respondent and Mr. Yahya Bakhtiar as amicus curie, who has ably assisted us. There is no force in the contention of the learned counsel for the appellants that the notification No. 26 is mere a notifica tion and not an ordinance. We have before us a certified copy of the notification in English dated the 9th of March 1955 issued by the Secretary to the Council of Rulers, B. S. U. The relevant portion of this notification reads as under :‑ " In exercise of the powers vested in them under section 59 of the Interim Constitution Act, Baluchistan States Union, 1952, the Council of Rulers on the advice of the Wazir‑e‑Azam, Baluchistan States Union are pleased to promulgate the following ordinance, that the following Acts are hereby enforced in the Baluchistan States Union with effect from 1st April, 1955." A perusal of the above would show that it was an ordinance. When the learned counsel for the appellants was confronted with this notification he replied that the word "ordinance" does no find place in the notification issued in Urdu, a certified copy whereof has been filed by him. The relevant portion of the notification is as under :‑ There is no doubt from a perusal of the above that the word "ordinance" has not been used in the notification published in Urdu, but to our mind, this is not very material. The words, "in exercise of the powers vested in them under section 59 of the Interim Constitution Act" are very important. Section 59 of the Interim Constitution Act runs as under :‑ " Until the Legislative Assembly comes into being the Council of Rulers shell have power to make and promulgate ordinances for the peace and good government of the Union, or any part thereof and any ordinances so made shall have the same force of law as an Act passed by the Legislative Assembly." The absence of the word "ordinance" to our mind does not take away the force of the notification as ordinance which was pur ported to have been made in exercise of the powers conferred on the Council of Rulers under section 59 of the Interim Constitution Act. 1952 The learned counsel for the appellants next contended that the notification in question was bad in law for want of sanction by the Governor‑General under section 53 of the Interim Constitution Act, 1952. He urged that an ordinance made for the peace and good government of the Union was an ordinance made in the event of emergency and therefore section 53 of the Interim Constitution Act, 1952 was applicable. The relevant portion of section 53 reads as under :‑ "S. 53 (1) If at any time when the legislature of the Union is not in session or to the event of emergency the Council of Rulers is satisfied that circumstances exist which make it necessary for it to take immediate action for the purpose of enabling it to discharge its functions satisfactorily, it may promulgate such ordinances as it thinks to be required by the circumstances Provided flint the Council of Rulers shall not without the previous concurrence of the Governor‑General promulgate any such ordinance." A perusal of section 53 with section 59 of the Interim Constitution already reproduced above, would show that there is a great difference between tire two. Section 59 was applicable only so long as the Legislative Assembly had not come into being while section 53 came into operation only after the Legis lature of the Union had come into being. Moreover, the action taken by the Council of Rulers for the peace and good govern ment of the Union is quite different from an action taken by the Council of Rulers in the event of emergency. We do not, think that when the Council of Rulers have purported to act under section 59 of the Interim Constitution any previous con currence of the Governor‑General was necessary. The third contention of the learned counsel for the appellants was that the legislative powers of the Legislative Union was, confined to the matters enumerated in Parts II and III of the 2nd Schedule of the Interim Constitution Act, 1952. Item 54 of Part II and Items Nos. 25 and 36 of Part III of the 2nd Schedule of the Interim Constitution specifically take away the power of the Legislative Union to legislate in respect of "fees taken in any Court". The said notification, it was urged is bad in law. Item 54 of Part II of the 2nd Schedule of the Interim Con stitution runs as under :‑ "Fees in respect of any of the matters in this List, but not including fees taken in any Court". Items 25 and 36 of Part III of the 2nd Schedule of the Interim Constitution are also substantially in the same words as Item 54 of the II part reproduced above. The learned advocate, on the basis of this exclusion of power to legislate in respect of the items mentioned above, contended that the notification was not valid. There is no force in this contention. Item I Part II of the 2nd Schedule (The Union Legislative List) runs as under :‑ " Public order (but not including the use of Her Majesty's naval, military or air forces in aid of the civil power) ; the administration of justice ; constitution and organisation of all Courts, except the Federal Court, and fees taken therein, preventive detention for reasons connected with the maintenance of public order ; persons subject to such detention." This item of the Union legislative list specifically gives power to the Union legislature to frame laws in respect of fees taken in all Courts except the Federal Court. It may be mentioned here that Parts 11 and III of the 2nd Schedule of the Interim Constitution are substantially the same as Lists 2 and 3 of the 7th Schedule of the Government of India Act. 1935. Items 1, and 54 of Part II of the 2nd Schedule of the Interim Constitution are the same as Items 1 and 54 of List 2 of the 7th Schedule of the Government of India Act, 1935, The learned advocate for the appellant very strenuously contended that the effect of the notification in question was to extend Federal law to the B. S. U., which could be done only by the Governor‑General. In support of his contention, he relied on section 95‑A of the Government of India Act, 1935. Relying on the above provision of law, the learned advocate for the appellant contended that a law app4cable to Pakistan would not apply to an area like that of Baluchistan States Union unless the Governor‑General made it expressly applicable. This argument on the face of it is based on the assumption that section 95‑A of the Government of India Act, 1935 applies to the Baluchistan States Union. An examination of the Government of India Act, 1935, however, would show that there is no basis for this assumption. Section 95‑A of the Government of India Act, 1935 reads as under :‑ "95‑A. Powers of Governor‑General to extend application of laws.‑(1) The executive authority of the Federation extends to the areas included in the Federation under clause (bb) of section 5, but notwithstanding anything in this Act, no existing law, no Act of the Federal legislature and no notification, rule or other instrument whether made before or after the fifteenth day of August, 1947 shall apply to any such area unless the Governor General by public notification so directs, and the Governor -General in giving such a direction with respect to any such law, Act, notification, rule of other instrument may direct that the law, Act, notification, rule or other instrument shall in its application to that area or to any part thereof have effect subject to such exceptions or modifications as he thinks fit. (2) Any direction given under this section may be given so as to be retrospective to any day not earlier than the fifteenth day of August, 1947 and may continue in force on and after that day and subject as aforesaid any such law, notification, rule or other instrument in force immediately before that day." It is clear from a perusal of the above that section 95‑A of the Government of India Act, 1935 would apply to the areas included in the Federation under clause (bb) of section 5 of the Act. Section 5 of the Government of India Act reads as under. , "

5. Establishment of the Federation.‑(l) As from the fifteenth day of August, 1947, there shall be united in a Federation by the name of Pakistan‑(a) the Provinces herein after called Governors' Provinces, "(b) the Provinces hereinafter called Chief Commissioners' Provinces, (bb) any other areas that may with the consent of the Federa tion be included in the Federation, (c) the Capital of the Federation, and (d) such Indian States as may accede to the Federation in the manner hereinafter provided. (2) The said fifteenth day of August is the date referred to in this Act as the date of the establishment of the Federation." It would appear from notification of Government of Pakistan, Ministry of States and Frontier Regions, dated the 27th June 1950 that "the external Frontiers Regions, of Pakistan" was included in the Federation of Pakistan within the meaning of S. 5 (1) (bb). The relevant portion of the said notification dated 27th June, 1950 reads as under :‑ "Whereas the inhabitants of the areas situated within the external Frontiers of Pakistan which are not included in any of the Provinces or in the Chief Commissioner's Province of Baluchistan or in any of the acceding States or in the Capital of the Federation have, through their accredited representatives, declared their territories to be a part of Federation of Pakistan as constituted on the 15th day of August, 1947. And whereas the Governor General has accepted their request and given his consent to these areas being included in the Federation of Pakistan." It is clear from the above that the States which had acceded to Pakistan were not included in the Federation under sub clause (1) (bb) of section 5 of the Government of India Act. The Rulers of Kalat, Mekran, Lasbela and Kharan States had executed Instruments of Accession on the 27th, 17th, 7th and 17th March, 1948 respectively. These states entered into a Covenant for the Formation of the Union of Baluchistan States with the approval of the Governor‑General of Pakistan on the 11th of April, 1952. The President of the Council of Rulers of the Baluchistan States Union executed an Instrument of Accession on the 3rd of November, 1952 on behalf of the Council, which was accepted by the Governor‑General of Pakistan on the 2nd December, 1952. These facts are borne out by the various Instruments of Accession. The four states namely, Kalat, Mekran Lasbela and Kharan are, therefore, States, which acceded within the meaning of subsection (I) (d) of section 5 of the Government of India Act, 1935. It was next contended before us that under para. (iii) (a) of the Instrument of Accession of the Union of Baluchistan States to the Federation that it was only the Governor‑General, who had power to extend any Federal law and, therefore, it could not be extended by the Council of Rulers. This contention has no force. Para. (iii) (a) of the Instrument of Accession reads its under :‑ "Further, that for the better discharge of the functions assumed by the Governor‑General in relation to the Union in respect of matters with respect to which the Federation legis lature has power to make laws‑ (a) the Governor‑General shall have power, by order, to extend to the Union any existing Federal law relating to a matter included in Parts I and II of the Schedule with such modifications as may be necessary for the purpose of adapting its provisions to the conditions obtaining in the Union ;" It is clear from the above that para. t I applies only to matters with respect to which the Federal legislature has power to make laws. Under Item I of Part III of the Schedule, the Union has the power to frame laws in respect of the fees taken in all Courts except in Federal Court. In other words, the legislation in respect of Court fees is no longer a Federal subject but a Provincial subject. Lastly, it was contended before us that as the Interim Constitution has now disappeared with the merger of the Baluchistan States Union with the West Pakistan the notification passed by virtue of section 59 of the Interim Constitution is no longer applicable. The short answer to this argument is that under section 10 of the Establishment of West Pakistan Act; 1955, the law applicable to the areas that now form part of West Pakistan stilt' continue to be applicable. In this connection, reference may also be made to Article 224 of the Constitution, which makes applicable the existing law. For the reasons given above, we would hold that the Court Fees Act, 1870 as applicable to the former Baluchistan has become applicable to the Baluchistan States Union by virtue of the notification dated the 9th March, 1955 issued by the Secretary to the Council of Rulers. K.M. A. Appeal dismissed.