P L D 1963 (W (PLP)

SHABIR AHMED, J.‑The main question that falls for determination in this appeal also falls for determination in Letters Patent Appeal No. 198 of 1961 as well as in Writ Petitions Nos. 318‑R of 1961, 495‑R of 1961, 367‑R of 1962, 368‑R of 1962 and 616‑R of 1962, and it is, therefore, desirable that all these matters should be disposed of by the same order.

2. The question that arises is whether certain persons who are either appellants or petitioners in the present matters were "displaced persons" for the purposes of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to be referred to hereinafter as the Act. At the relevant time, section 2 (3) of the Act was in the following terms :‑ "

2. In this Act, unless there is anything repugnant in the subject or context, (3) "displaced person" means any person who, on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances in any area now forming part of or occupied by India, has on or after the first day of March 1947, left or been displaced from, his place of residence in such area and has subsequently become a citizen of Pakistan, or is residing therein, and includes any person who, being a resident of any territory outside India, is for that reason unable to manage, supervise or control any property belonging to him in India or in any area occupied by India, and also includes the successors‑in‑interest of any such person."

3. Before taking up the consideration of the definition and its applicability or otherwise to persons whose cases are being disposed of, I would give the facts of each case in brief. This appeal (L. P. A. No. 133 of 1961) is directed against the order passed by my learned brother. Masud Ahmad in Writ Petition No. 226‑R of 1961 on the Ist of May 1961, whereby a petition presented by the appellant was dismissed at a preliminary hearing. It had been claimed by the appellant that though he was born and bred in Chiniot, which place is a part of Pakistan, he had gone to Bombay for doing business and that he had to come away from Bombay (India) soon after the Partition of British India because Bombay fell within the Dominion of India. The appellant was in occupation of a shop for the transfer of which he had put in an application under the Act. This application was presented on a form technically known as NCS form, the initials indicating that the form had been put in for the transfer of a shop by a displaced person who was a non‑claimant‑the term "non‑claimant" meaning in the context that the applicant had left no property in India. The appellant failed before the Settle ment Authorities whereupon he had put in the writ petition which was dismissed by my learned brother Masud Ahmad. The Settlement Authorities had held that the appellant was not a displaced person and, therefore, not entitled to the transfer of the shop. One of the reasons for the order of the Settlement Authorities appears to have been that in an order passed on the 6th of May 1950, the appellant had not been treated as a refugee by the Rehabilitation Authorities under the Rehabilitation Act of 1948 which was in force at that time. L. P. A. No. 198 of 1961.‑The facts of this case are that Abdul Aziz had, like Mahbub Elahi the appellant in L. P. A. No. 133 of 1961, claimed to be a non‑claimant displaced person and on that basis wanted the transfer of a shop in his favour under the provisions of the Act. The appellant was born and bred at Chiniot in the district of Jhang, but at the time of the Partition of British India was staying in Agra in India where he had gone some years earlier in connection with the business which he did there. The Writ Petition by Abdul Aziz was dismissed at a preliminary hearing by my learned brother Muhammad Daud Khan on the 11th of July 1961, and it was against this order of dismissal that Abdul Aziz presented a Letters Patent Appeal. Writ Petition No. 318‑R of 1961.‑This petition has been made by Fazal Din, a resident of Sialkot, who wanted the transfer of a shop claiming that he was non‑claimant displaced person. His case before the Settlement Authorities has had a rather tortuous course but the ultimate order of the Settlement Authorities was that Fazal Din was not a displaced person. The claim of Fazal Din to be a displaced person rested on his asser tion that he had been working at Simla, a place which is now within the territory of India, and had to leave it on account of the Partition of British India in August 1947. It appears that though Fazal Din used to work at Simla during the summer each year, he worked during winter at Sialkot, his place of birth, which town is in Pakistan. The Settlement Authorities held that the circumstances relied upon by Fazal Din did not justify a finding that he was a displaced person, and it was against this order of the Settlement Authorities that Fazal Din has come to this Court praying for issue of a writ. Writ Petition No. 495‑R of 1961.‑In this case the facts are that Nur Ahmad petitioner had been held by the Settlement Authorities not to be entitled to the status of a displaced person for the purposes of the Act. Nur Ahmad was competing with Fazal Din, who is the, petitioner in: the above‑mentioned Writ Petition No. 318‑R of 1961. Writ Petition No. 367‑R of 1962.‑The facts of this case are that Haji Muhammad Rafiq and . his two brothers Muhammad Latif and Gulzar Ahmad had been held by the Settlement Authorities not to be "displaced persons" for the purposes of the Act. They had contended that though they were residents of Chiniot, they had been working at Agra (India) where they had to leave their business by reason of the Partition of British India, but the Settlement Authorities did not treat them as displaced persons. Writ Petition No. 368‑R of 1961.‑This petition was presented by Muhammad Umar. In this petition the same question arises as in the previous one, namely, whether or not the petitioner was a displaced person. Writ Petition No. 616‑R of 1962.‑In this. petition it was claimed that Mehar Din was a displaced person because though born at a place which is now in Pakistan, he had to leave Ludhiana (India) where he had been doing business, on account of the Partition of British India. This claim not being accepted by the Settlement Authorities, Mehar Din came to this Court for redress by presenting this petition.

4. The definition of the expression "displaced person" is, as already mentioned, given in subsection (3) of section 2 of the Act. Along with this provision of law, one has also to consider some orders issued by the Settlement Authorities. One such order is Memorandum No. 7613‑Comp‑Reh/59 dated the 27th of November 1959, which reads as under:- "In this office Memorandum No. 2604‑Comp‑Reh/59 dated 22nd August 1959, instructions were issued that persons belong ing to the territories now forming Pakistan who were temporarily residing before Independence in the areas now included in India may be treated as displaced persons. The Chief Settlement Commissioner has decided, on further consideration, that only such persons falling in this category should be treated as displaced persons who would have stayed on indefinitely in the areas now forming part of India in the normal course of their service or business had there been no disturbance after 1st March 1947. In particular, Government servants belonging to the areas at present included in Pakistan who were liable to transfer back to these areas or all over the Indo‑Pakistan sub‑continent in the course of their duties should not be treated as displaced persons." In this memorandum the Chief Settlement Commissioner had given his interpretation of certain terms which occurred in the definition of "displaced person" in section 2(3) of the Act. Once again, this question was taken up by the Settlement Authorities and on the advice of Major Ishaq Muhammad Khan, Settlement Commissioner (Legal), a memorandum was issued to all Settlement Authorities, which contained directions in its tenth paragraph which read as under :‑ "To sum up‑ (i) `residence' means `fixed habitation' which should amount to `domicile'. (ii) One has therefore to prove to the satisfaction of the Settlement Authorities that it was a fixed or permanent residence which was left in India. Besides it, the fact of physical residence, the intention to reside at a place is to be proved satisfactorily. The Settlement Authority will then give a finding of fact. (iii) A man is not to be deemed to have taken up his fixed habitation in India merely by reason of his residing there in the civil, military, naval or air force, or in the exercise of any profession or calling. (iv) In a case where originally a person had a residence then he had to prove to the satisfaction of the Settlement Authority, that he had abandoned his original residence and had acquired a new residence elsewhere. (v) Length of residence at a new residence, however, long it may be, is not by itself sufficient to prove animus menedi and animus non‑revertendi to the original residence. (vi) As a rule the Courts will be reluctant to believe per manent change in residence unless it is proved beyond all possible doubts." It need scarcely be mentioned that if a definition' attempted by' the Settlement Authorities does not find favour with the Court, the opinion of the Court shall prevail.

5. It was contended by the learned counsel who appeared for persons who, in the matters under consideration claim to be displaced persons that as each of the persons, whose status is under consideration by the Court, was residing in and doing business at a place which, on the Partition of British India into Pakistan and India, fell to the share of the latter and had to leave the place where he had been residing and doing business as a result of the Partition of British India into two separate countries, he is to be deemed to be a displaced person for the purposes of the Act notwithstanding the fact that he was born at a place which has fallen to the share of Pakistan but had gone to the place where he was residing and working at the time of the Partition of British India. The contention raised in reply by Major Ishaq Muhammad Khan, Settlement Commissioner (Legal) was that before a person could claim the status of a displaced person for the purposes of the Act, it must be established not only' that the person had been residing in a place situated within the territories of India but also that his residence was not of a temporary character only. He added that the intention of the person to settle or not settle in India was the main thing to consider and if the person had not had the intention of per manently settling in India but of returning to Pakistan wherein his place of birth was situated, he could not be deemed to be a displaced person for the purposes of the Act. The stand taken in Court by Major Ishaq Muhammad Khan, Settlement Commis sioner (Legal) was not different in any material respect from the opinion expressed by him in not suggesting 4 definition of a "displaced person" reproduced in the last paragraph, which appears to have been accepted by the Chief Settlement Com missioner who sent his memorandum No. 9081‑PI‑Reh/60, dated the 19th of October 1960, wherein the note recorded by Major Ishaq Muhammad Khan with regard to the meaning of the term "displaced person" was included for information and guidance of all Settlement Authorities in West Pakistan including Karachi. In order to explain his introducing into the definition of "dis placed person" suggested by him conditions which were germane when the question with regard to the domicile of a person arose, Major Ishaq Muhammad Khan said that as the Legislature had thought fit to use two expressions with regard to residence in the definition of "displaced person", one of which was "place of residence" and the other "residing", the Court should hold that before a person could claim to be a "displaced person" under the Act he must prove not only that at the time of Partition of British India he was residing in a place situated in territory that fell to the share of India, but also that he had no intention of returning to his place of birth which was situated in a territory that became a part of Pakistan. It is clear that the question that falls for determination is whether or not sub section (3) of section 2 of the Act wherein is contained the definition of the term "displaced person" envisages permanent resi dence in India, but it is equally clear that the fact that at one place in the subsection the Legislature used the expression "place of residence" and at another the expression "residing" can be of no assistance in the attempt to find an answer to that question. It would be carrying the canon of interpretation of statutes to the effect that different words used in a section or a statute are to be presumed to have different meaning, much too far to hold that the use of the expression "place of residence" at one place in subsection (3) of section 2 of the Act and of the expression "residing" at another place in the same subsection was meant to indicate that the two expressions dealt with two different situations. The slight change in the language on which so much reliance was placed by Major Ishaq Muhammad Khan was unavoidable so that rules of grammar should not get broken and connotes nothing of any significance.

6. When setting out to interpret a statute, the Court is to' discover what the intention of the law‑maker was. Such inten tion should be gathered by giving to expressions used by the law maker meanings which the same statute or another law which has application to the subject such as the General Clauses Act gives them. If any expression used in a statute is ambiguous, statutes on a cognate subject in‑which the same expression may have been used may be referred to for the purpose of finding out the inten tion of the law‑maker. There are other canons of interpretation of statutes which are too numerous to be touched upon here even cursorily but the purpose of all such canons some of which have been acted upon for extremely long time is the same, namely, making as easy as possible the finding out of the intention of the law‑maker, and for that end it is even permissible to do some violence to the language used in a law provided the violence is used with the object of bringing the law in conformity with the avowed intention of the law‑maker or to avoid making the law look unreasonable. It is in the light of these principles that I proceed to consider to what persons the definition contained in subsection (3) of section 2 of the Act was intended to apply. There can be no manner of doubt that a person who had gone on a casual visit to places which fell to the share of India on the Partition of British India cannot fall within the definition given in subsection (3) of section 2 of the Act, though it may perhaps not be incorrect to say that at least for the period that a person is at a place he can be said to be residing there. Exclusion of casual visitors to India from the ambit of subsection (3) of section 2 of the Act is not possible to avoid because the Act is meant to benefit those persons who were uprooted from their homes. The question that requires determination is whether the residence envisaged in subsection (3) of section 2 of the Act is residence coupled with the intention of giving up one's original home or merely residence with the object of earning livelihood but with no fixed desire of settling at the place where livelihood was being earned.

7. The only other statutes in which the term "displaced person" occurs are the Registration of Claims (Displaced Persons) Act, (III of 1956), and the Pakistan (Administration of Evacuee Property) Act (XII of 1957). Each of the above Acts gives a different definition of the term and neither of them is to the same effect in all respects as the definition given in subsection (3) of section 2 of the Act. The definition given in subsection (1) of section 2 of the Registration of Claims (Displaced Persons) Act (III of 1956) can be said to resemble the definition given in the Act in some important respects but can be of little assistance for the present purposes. Another definition which may be mentioned is that of the term "refugee" given in the Pakistan (Administra tion of Evacuee Property) Ordinance (XV of 1949) in sub section (6) of section 2 which reads as follows :‑ "(2) In this Ordinance, unless there is anything repugnant in the subject or context :‑ (6) `refugee' means a person who, having been ordinarily resident in any place in the territories now comprising India, or in any area occupied by India, has, on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbance or the fear of such disturbances, taken refuge in Pakistan." This definition does not claim to give the definition of the term "displaced person" and I would not have referred to it had it not been for the fact that Major Ishaq Muhammad Khan adverted to it in his arguments. As no assistance is available from laws that deal with subjects snot materially different from that dealt with in the Act, one has to confine his attention to the Act itself. Interpretation placed on the taken "displaced person" by the Settlement Authorities would have tendered considerable assistance but in this case it cannot as one finds that the De partmental interpretation has been changing as is clear from memorandum No. 7613‑Com‑Reh./59 dated the 27th of November 1959, and memorandum No. 9081‑PL‑Reh/60 dated the 19th of October 1960, both of which have been reproduced in para graph 4.

8. I have already said that a person who was on a casual visit to a place which by reason of Partition of British India became apart of India in the middle of August 1947, cannot satisfy the definition of the term "displaced person" given in the Act, but that finding does not end the matter because the Court has to give an interpretation of the term. I have mentioned in paragraph 5 that Major Ishaq Muhammad Khan, Settlement Com missioner (Legal), who argued the case on behalf of the Settlement Authorities, contended that that person alone who had given up the intention of returning to his territory which fell to the share of Pakistan on the Partition of British India in August 1947 could be treated to be a "displaced person" for the purposes of the Act, and though I have already said that the fact that at one place in subsection (3) of section 2 of the Act the expression used is "place of residence" and at another the expression "residing" is used cannot lead to the inference sought to be drawn by the learned Settlement Commissioner (Legal). 1 proceed to consider whether one should accept his contention to the effect that proof of intention to take up permanent abode at the place in India at which a person was at the time of Partition of British India was essential before such a person could be held to be a "displaced person" for the purposes of the Act. I have given the matter considerable thought and have arrived at the conclusion that though a casual visit to place that fell to the share of India was not sufficient it was not necessary that intention not to return to one's original home which may be in a territory that became Pakistan must exist. My main reason for placing this interpreta tion on subsection (3) of section 2 of the Aft is that though the expression "domicile" is frequently used in legislative parlance, one finds it completely absent from the provision of law the inter pretation of which is under consideration.

9. The purpose for which the Act was brought on the statute book can be of some assistance for the present purposes. This purpose was that persons who by reason of the Partition of British India in 1947 had been uprooted from the place where they had settled themselves should be compensated for the losses they had suffered. It will be noticed that the Act places persons who bad suffered in the form of loss of houses and similar properties such as cinemas, factories etc. in a higher position than those who had not left any property of this kind in India while) the latter of the above‑mentioned class of persons has been placed in a higher position than persons who have all along been at a place in the territory which became Pakistan on the 14th of August 1947. That persons who were uprooted from the places in which they were leading their lives peacefully suffered losses cannot be doubted even if they did not leave behind a house or such other property and I find it extremely difficult to believe that the law‑makers shut their eyes to the circumstances of persons of this type and wanted them to be treated like persons who had all along been residents of the place in which they had in the beginning taken refuge on finding that they could no longer remain at the place they had had no immediate intention of leaving. Can such persons be considered to be less deserving of assistance than those who had been born or lead been domiciled at a place which fell to the share of India in August 1947, but had not suffered the least, in property for the reason that they had no property to lose, is a question which cannot be answered in the negative by any reasonable man. On no reasonable ground can a person who had suffered losses because British India got divided into Pakistan and India and who had, in addition, to leave his abode, been considered, on account of the fact that many years earlier he was born at a place which became a part of Pakistan to be less deserving, of help than one who, though he had to leave his abode, had not suffered any losses by reason of that fact, and as in the absence of proof to the contrary of which proof there is a complete absence, the law‑maker is to be presumed to have acted reason ably, I have no hesitation in holding that a person who was running a business at a place that became a part of India in August 1947, does not fall out of the ambit of subsection (3) of section 2 of the Act in spite of the fact that the place to which he has come and his place of birth are both now parts of Pakistan. A person who, though not a casual visitor, had not left any property in India and had, in addition, been born in Pakistan will not satisfy the conditions that have to exist before he can be treated to be a "displaced person" for the purposes of the Act, and a person who was not born at a place that fell to the share of Pakistan but at a place which fell to the share of India but had left no property in India when he came for refuge to Pakistan will stand on a better footing than him because the former person shall not be declared to be a "displaced, person." Cases can arise‑and indeed Writ Petition No. 318‑R of 1961 is a case of that type that a person did business at two places one of which came to Pakistan and the other to India and the question is whether such a person could be deemed to be a ‑"dis placed person" for the purposes of the Act. That the visit of such a parson to that place which fell to the share of India was not casual is hardly open to question but one has to determine whether he satisfies the conditions required for treating a person to be a "displaced person". It appears to me that if arch a person was uprooted from that place of his business which is situated in territories which form part of India, he would be seemed to be a "displaced person", but if at the time of Partition of British India his business was being run at a place which came to Pakistan, he cannot be treated to be a "displaced person".

10. To sum up, my conclusions are‑‑ (a) A person who, though a resident of a place which on Partition of British India fell to the share of Pakistan, was on a casual visit to a place which fell to the share of India cannot be treated as a "displaced person" under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. (b) A person who, though an original resident of a place which on partition of British India fell to the share of Pakistan, was residing at the time of that Partition at a place which fell to the share of India and had no immediate desire of leaving the place but had not made it his permanent abode would be a "displaced person" for the purposes of the Act. (c) A person who ordinarily did business at two places and on Partition of British India one such place fell to the share of Pakistan and the other to that of India, such a person would be a "displaced person" for the purposes of the Act if at the time when Partition of British India took place in August 1947 he had to leave the place where he was at that time doing business and he would have continued to do business if he had had not to leave it because it fell to the share of India.

11. This brings me to the question what order should be passed in the present cases. I am of the view that all these appeals and the writ petitions should be accepted, the orders of the Settlement Authorities declared to be ineffective and the Settlement Authorities directed to dispose of these matters in the light of the observations made above regarding the meaning of the expression "displaced person" occurring in subsection (3) of section 2 of the Act, and I pass orders accordingly. I consider these orders necessary because in some cases relevant matters have not been taken into consideration while in others in addition to relevant matters not having been taken into consideration matters which had no relevancy had been taken into consideration. In all the circumstances, however, I would pass no order as to costs. MANZUR QADJR, C. J.‑I agree. A. H. Order accordingly.