P L D 1963 (W (PLP)

"The ultimate order of the Settlement was that Fazal Din was not a displaced person. The claim of Fazal Din to be a displaced person rested on his assertion 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." On these facts, the writ petition of Fazal Din was accepted as is clear from the operative part of the judgment in paragraph 11.

11. In view of the fact that there are conflicting decisions about the interpretation of the term "displaced person", it is necessary that this conflict should be resolved, which can be done only by a reference to a larger Bench and I, therefore, send this case to my Lord the Chief Justice for considering this matter, and if he thinks necessary, he may constitute a Full Bench to interpret the term "displaced person" used in section 2, clause (3), of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958). INAMULLAH, J.‑This reference to the Full Bench raises the e interpretation of the term "displaced person" as Displaced Persons (Compensation and Rehabili tation (Act XXVIII of 1958) hereinafter called the Act rig to interpret the term it would be useful to set out briefly the relevant facts giving rise to the reverence and to mention the two decisions which our learned brother Muhammad Iqbal, J. considered to have taken conflicting views of the term "displaced person". I propose to set out these in order.

2. Muhammad Din and Jaffar Hussain Shah submitted their C. H. Forms in respect of a house situated in Lahore. Syed Hyder Shah also applied for the same house as a non‑claimant. The Deputy Settlement Commissioner declared the premises to consist of two independent units and transferred one to Muhammad Din and the other to Syed Hyder Shah. It was urged before him that Syed Hyder Shah was not a displaced person but the contention was overruled by the learned Deputy Settlement Commissioner. On appeal before the Additional Settlement Commissioner it was contended that Syed Hyder Shah was a local and had gone to Bombay in connection with his business in film industry. The learned Additional Settlement Commissioner held Syed Hyder Shah to be a local. The relevant portion of his order reads as under:‑ "In his statement before the A. S. C., Hyder Shah stated that he originally belonged to Peshawar and from there he came to Lahore and then to Amritsar and hence migrated to Bombay, but he did not acquire any property in any of these cities. Hyder Shah has no documentary proof that he permanently settled at Bombay and had to migrate due to partition of the country." It would appear from the above that the basis on which the learned Additional Settlement Commissioner held Hyder Shah to be a local was that he had not permanently settled at Bombay. Syed Hyderali Shah went in revision before the Settlement Com missioner against the order of the Additional Settlement Commissioner who dismissed the same holding that "the mere residence for some time in India cannot confer upon a person the status of a displaced person." The second revision was dismissed by Mr. Muhammad Rafiq, Settlement Commissioner who had the powers of the Chief Settlement Commissioner. He did not assign any reason for his order.

3. Syed Hyder Ali Shah filed a petition before the High Court challenging the various orders passed by the Settlement Authorities against him on several grounds. The ground giving rise to the reference was that he was a displaced person within the meaning of section 2, clause (3) of the Act.

4. The important question that arose before the learned Single Judge was whether on the facts brought on the record Syed Hyder Ali Shah could be held to be a displaced person within the definition of the term given in the Act. A ‑fair analysis of the facts found by the various Settlement Authorities against Syed Hyder Ali Shah come to this:‑ (1) that Syed Hyder Ali Shah had no documentary proof that he had permanently settled at Bombay or acquired any property in Bombay and that he had to migrate to Pakistan because of the setting up of the two Dominions; (2) that mere residence (of Syed Hyder Ali Shah) for some time in India cannot confer upon him the status of a displaced person.

5. The learned counsel for the petitioner before the Single Judge relied on the case of Mahboob Elahi v. The Chief Settlement Commissioner, Pakistan (P L D 1963 Lah. 214). Shabir Ahmad, J., summed up his conclusions as to the interpretation of the term "displaced person" in the following words:‑ "(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 not to leave it because it fell to the share of India." On behalf of the petitioner reliance was placed on conclusion (b) reproduced above. It was urged that Syed Hyderali Shah was residing at the time of Partition in Bombay and had no immediate desire to leave the place, though he had not made it his permanent residence; he was therefore a displaced person.

6. On behalf of the respondents reliance was placed on the case of Mrs. Keays Byrne v. The Settlement Commissioner and others (P L D 1963 Lah. 88). Mrs. Keays Byrne was running a hotel in three evacuee bungalows in Rawalpindi. Describing herself as a non‑claimant displaced person from Jammu and Kashmir she submitted a KNCS Form for the transfer of the said bungalows. She alleged that she had been running a hotel in Srinagar and also in Gulmerg. In that case their Lordships while interpreting the words "place of residence" appearing in the definition of displaced person, relying upon the decision in the case of Lmdadali Malik v. The Settlement Commissioner Lahore (P L D 1962 Lah. 502) held that before a person can qualify under the first part of the definition of the term displaced person it must be shown that the permanent or quasi‑permanent place of his residence was in any area now forming part of or occupied by India. It was found, as a matter of fact, in that case that Mrs. Keays Byrne was a permanent resident of Rawalpindi on the 1st of March 1947, and therefore "she cannot be said to have her permanent or quasi‑permanent place of residence in occupied Kashmir where she only happened to live temporarily for the purpose of managing her hotels in Gulmerg and Srinagar." It was further observed that she did not leave Srinagar because of the Partition of the sub‑continent or on account of civil disturbances or the fear of such disturbances in Srinagar.

7. Mr. Justice Muhammad Iqbal has come to the con clusion that the interpretation put on the term "displaced person" in Mrs. Keays Byrne case is in contradistinction to the interpretation placed in the case of Mahboob Elahi and others. With great respect to the views of my learned brother I do not find any contradistinction in the interpretation put by the learned Judges in the two cases namely Mahboob Elahi and others and that of Mrs. Keays Byrne. The difference is only in the language but the principle laid down to my mind is not the same. Their Lordships along with the Letters Patent Appeal of Mahboob Elahr disposed of six other Letters Patent Appeals. The question involved in all the Letters Patent Appeals was the interpretation of the expression "displaced person" The common feature in all these appeals on the factual side was this:‑ "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 question was whether the appellants who were 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 because of the Partition could be said .to be displaced persons for the purposes of the Act notwithstanding the fact that they were born and had a residence at a place which has fallen to the share of Pakistan. Their Lordships did not hold any one of the appellants to be a displaced person or otherwise. All that they did was to have set aside the order of the Settlement Authorities and to have directed them to decide their cases in the light of the observations made regarding the meaning of the expression `displaced person'. In order to find out whether the interpretation put on the term "displaced person" in Mrs. Keays Byrne's case is in contradistinction with the interpretation put in Mahboob Elahi's case all that is necessary is to see whether a different result would follow in the case of Mahboob Elahi if the interpretation put in Mrs. Keays Byrne was applied to it. I have no doubt that the result in Mahhoob Elahi's case would be the same. I would consider the case of Fazaldin which has been mentioned by His Lordship, Mr. Justice Muhammad Iqbal. The relevant portion of the judgment relating to Fazaldin reads as under: "His case before the Settlement Authorities had a rather tortuous course but the ultimate order of the Settlement Authorities was that Fazaldin was not a displaced person. The claim of Fazaldin to be a "displaced person" rested on his assertion that he bad 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 Fazaldin used to work at Simla during the summer each year he worked during the winter at Sialkot, his place of birth which town is in Pakistan. The Settlement Authorities held that the circumstances relied upon by Fazaldin did not justify a finding that he was a displaced person." It was against this order of the Settlement Authorities that Fazaldin came to the High Court. Applying the principle laid down in Mrs. Keays Byrne's case the order would have been the same, namely, to set aside the orders of the Settlement Authorities and to direct them to decide the case of Fazaldin in the light of the definition of the term "displaced person" given in that case (Mrs. Keays Byrne). The Settlement Autho rities in the light of that case had to determine whether Fazaldin had a permanent or semi‑permanent residence at Simla.

8. The conclusions arrived at in Mahboob Elahi's case do not warrant the deduction that a person who has a temporary residence in that part of British India which now forms India and has a permanent residence in that part of British India which forms Pakistan would be entitled to the benefit of a displaced person under the Act. To my mind, there is not much difference between a person who is a casual visitor to a place which fell to the share of India and a person who is on a temporary visit to that place. Both the persons would not fulfil the various ingredients of the term "displaced person". From the conclusions arrived at in Mahboob Elahi's case it cannot be construed that the word "displaced person" means temporary residence. The conclusion drawn in the case of Mahboob Elahi has to be read with the discussion embodied in the judgment. A person who had a temporary residence in that part of British India which now forms India cannot be said that he would have continued to do business but for the Partition. He would have returned to his permanent residence in that part of British India which now forms Pakistan irrespective of the reasons mentioned in the term displaced person. The return perhaps in some cases may have been accelerated because of the grounds mentioned in the term displaced person.

9. I would now proceed to consider the term "displaced person" as defined in the Act. It would be useful to reproduce the definition as given in subsection (3) of section 2 of the Act. It runs as under:‑ "Displaced persons" 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, if 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. " It would appear from the above that the definition of the term "displaced person" is divided into two parts; the first part is based on the residence of the person in an area now forming part of or occupied by India; and the other is based on his non‑residence in any area now forming part of or occupied by India. There is no difficulty so far as the second part of the definition of displaced person is concerned. All that would be necessary for a person who claims to be a displaced person under this part of the definition is to prove his inability to manage the property in India because of the reasons given in the definition. The difficulty arises only in interpreting the first part of the term.

10. On a fair analysis the first part of the definition resolves to this:‑ (1) that prior to first of March 1947, the person who claims to be a displaced person must have had his place of residence in any area now forming part of or occupied by India; (2) that he must have left or been displaced on or after the 1st of March 1947, from his place of residence; (3) that he must have left his place of residence on account of civil disturbances or the fear of such disturbance in any area now forming part of or occupied by India; (4) that after leaving his place of residence in the aforesaid area he should have subsequently either become a citizen of Pakistan, or resides therein.

11. The difficulty that arises in the construction of the first part of the definition is because of the meaning to be given to the word "residence".

12. It is not of much assistance to trace the history of the various laws promulgated since after the Partition to rehabilitate the up‑rooted people and to administer property left by evacuees. It would be unnecessary to encumber the judgment with these laws. It would be sufficient to state that the object of these laws was to make provision for the restoration and maintenance of the social and economic life of Pakistan and the orderly settlement of persons who took refuge in Pakistan and to administer the evacuee property. These laws do not offer much assistance in interpreting the word "residence". In this connection I may also mention that the departmental interpretation of the term displaced person also is not of much aid. Major Muhammad Ishaq for the Department candidly conceded that the interpre tation put by the department as envisaged in the departmental instructions does not satisfactorily explain the term "displaced person". 12‑A. The principal word which has to be interpreted is the word `residence'. The meaning of the word has not been limited by any statutory definition. In the absence of any statutory definition the only place where an authoritatively accepted meaning can be sought is in a standard dictionary. In the Shorter Oxford English Dictionary which is recognise as a leading authority on the meaning of the words in the English language the word reside means "to settle", "to take up one's abode or situation", "to dwell permanently or for a considerable time", "to have one's settled or usual abode", "to live in or at a particular place". The meaning of the word 'residence' is given as: to have one's usual dwelling place or abode", "the circumstance or fact of having one's permanent or usual abode in or in a certain place", "the place where a person resides", "his dwelling place". These are some of the meanings which are not given in the Shorter English. Dictionary. The meaning of the word reside from which residence is taken would indicate that one of the meanings of residence is permanent dwelling place or where a person lives for a considerable time.

13. The word residence was considered in Ex Parte Breull, In re Bowie (16 Ch. D 484); Ford v. Drew (5 C P D 59); Lewis v. Graham (20 Q B D 780) and Madho Pershad v. A. L. Walton (18 C W N 1050) to be an elastic word of which an exhaustive definition cannot be given. It has been the subject of judicial consideration on diverse occasions and in relation to a variety of circumstances, the word 'residence' occurs, for instance, in the Civil Procedure Code, Divorce Act, Lunacy Act, Income‑tax Act and Guardians and Wards Act and many other Acts. A reference to the word residence occurring in these Acts cannot resolve the difficulty with which one is faced in this Act. The difficulty is whether "residence" occurring in the term "displaced person" means permanent, quasi‑permanent or temporary residence or excludes temporary residence.

14. The question is as to how to resolve this difficulty. The difficulty can be resolved by construing the word in accordance in with the object and intent of the Act. It was observed in the case of Ex Parte Bruell In re: Bowie by James, L. J. with whom Cotton, L. J. agreed while considering the scope of the word 'residence and business' observed as under:‑ "The words residence and business have no actual definite technical meaning but that we must construe them in accor dance with the object and intent of the Act in which they occur." Lord Coleridge, C. J. in (1888) 20 Q B D observed as under: "I agree with the observations of James, C. J. in Ex Parte Bruel In re Bowie that residence and business are elastic words of which an exhaustive definition cannot be given but they must be construed in every case in accordance with the object and intent of every act in which they occur". In Muhammad Shuf v. Laldin Abdullah (I L R 3 Bom. 227) Sergeant, J. while interpreting the word "residing" in section 380 of the old Civil Procedure Code observed as under: "These cases show that the word "residence" may receive a larger or more restrictive meaning according to what the Court believes the intention of the Legislature to have been in framing the particular provision in which the word is used."

15. The question is, considering the above observations as to how to find out the object and intent of the Act so as to resolve the difficulty. The Preamble of a statute has been said to be a good means to find out its intent. In this connection a reference may usefully be made to Maxwell's Interpretation of Statutes, 11th Edition. The relevant passages run as under :‑‑‑ "The Preamble of a statute, even after repeal, has been said to be a good means of finding out its meaning, and, as it were, a key to the understanding of it; and, as it usually states, or professes to state, the general object and intention of the Legislature in passing the enactment, it may legitimately be consulted to solve any ambiguity, or to fix the meaning of words which may have more than one, or to keep the effect of the Act within its real scope, whenever the enacting part is in any of these respects open to doubt. Therefore, since an Act which authorised aliens who "shall have been resident" in the country for two years to hold land, might either be limited to persons who had so resided before the passing of the Act, or extend to those who should at any time reside for the required time, the Preamble was resorted to in order to determine which of the two meanings was the more agreeable to the policy and object of the Act; and, as it recited that aliens were prevented by law from holding lands in the state and it was the interest of the state that such prohibitions should be done away with, it showed that the former construction was less adapted to give effect to the intention of the Legislature than the latter."

17. The Preamble of the Act runs as under:‑‑‑ "Whereas it is expedient to provide for the payment of compensation to certain displaced persons for the losses suffered by them on account of expropriation by the Government of India of their rights in property in India or in any area occupied by India, and the rehabilitation of others, and for matters incidental thereto or connected therewith" It would appear from the preamble of the Act that the intention of the Legislature was not to provide for payment of compensation to displaced persons and to rehabilitate them; in other words, to compensate and rehabilitate the uprooted persons from that part of British India which now forms part of India. It is clear P that the person contemplated must have left or been displaced from his place of abode so as to need compensation or rehabilitation. The necessity to compensate and rehabilitate will arise only in the case of those who have left a permanent residence or semi‑permanent abode. The question of com pensation or rehabilitation would not arise in the case of a person who was on a casual or temporary visit to that part of British India which now forms India. The object under the Act being to provide payment of compensation to displaced persons for the losses suffered by them on account of expropriation by the Government of India of their rights and property in India, the persons who were on a temporary visit can hardly be said to need compensation or rehabilitation. The intention and the object of the Legislature would not be compatible with the construction of the word residence so as to include temporary residence in that part of British India which now forms India.

17. I now propose to consider the situation in which the difficulty arises while interpreting the term displaced person. There would be no difficulty in the case of a person who has all along resided in that part of British India which now forms part cf India and has left or been displaced from his place of residence in such area. The difficulty arises only in the case of a person who had his residence in that part of British India which now forms part of Pakistan since before 1947, and was also residing or doing some work in that part of India which now forms part of India. The question is whether such a person can be covered by the term displaced person. Before answering the question it would be helpful to consider whether a person can be said to have two residences at two different places.

18. The word residence may be used in two senses, the one denoting the personal habitual habitation, the other the con structive, technical and legal habitation. When a person has a fixed abode where he dwells with his family, there can be no doubt as to the place where he resides; the places of his personal and legal residence are the same. When, on the other hand, a person has no permanent habitation or family, but dwells in different places as he happens to find employment, there can equally be no doubt as to the place where he resides; he must be considered as residing where he actually or personally resides. But some individuals have permanent habitations, where there families constantly dwell, yet they pass great portion of their time in other places; such persons have a legal residence with H their families and a personal residence in the other places, and, the word "reside" may, with respect to such persons, be used in relation to either their personal or their legal residence. From this point of view, it is manifest that one may have two places of residence, in one of which he resides during one portion of the year, in the other during the remaining portion; what may be said to be the place of personal residence during one portion of the year thus becomes the place of legal residence during the remainder of the year and vice versa. Reference, may in this connection be made to the judgment of Wood, V. C. in Walcot v. Botfield (101 R R 719) where it was ruled that a person may be said to have more than one residence if he has houses in different places at each of which he keeps an establishment; each may be called his residence, though he may not go to one of these places for some years. That a person may have more than one residence was recognised by the Judicial Committee in Sophia Order and another v. Alexander Skinner (I L R 3 All. 91) where Sir James Colvile observed that a man might have more than one dwelling place so as to become subject to the jurisdiction of each of the Courts within whose local jurisdiction his dwelling place was situated. To the same effect is the decision of the Judicial Committee in Srinivasa v. Vankata (I L R 34 Mad. 257).

19. I would in passing advert to a consideration of the distinction between the term domicile and residence. The difficulty perhaps in interpreting the word residence has arisen by equating it with the word domicile. There is a clear distinc tion between the two words; while a person may, have two or three places of residence he will have only one place as his domicile.

20. I would now answer the question which I had raised namely whether a person who had his residence in that part of British India which now forms part of Pakistan since before Partition and was also residing or doing some work or business in that part of British India which now forma part of India can be said to be a displaced person. In the light of the object and the intention of the Legislature as expressed in the preamble of the Act if such a person did not have a temporary residence in that part of British India which now forms India he can be said to be a displaced person. In this connection I would state that it will always depend upon the facts and circumstances of each case whether a person had a temporary residence or permanent or quasi‑permanent residence in that part of British India which now forms part of India. It is difficult to lay down any hard and fast rule under which a person having two residences, one in that area which now forms part of India and the other in that part which now forms part of Pakistan can be said to be a displaced person.

21. I would now conclude the discussion by making a reference to the definition of the term displaced person as given in the Act. The definition of the term itself excludes a person who had a temporary residence in that part of British India which now forms part of India from qualifying as a displaced person. Such a person cannot be said to have left or been displaced from his place of residence because of the setting up of the two Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbance in any area now forming part of or occupied by India. His departure may have been accelerated because of the grounds mentioned in the definition of the term. He cannot be said to have left his residence because of the reasons mentioned therein. His residence being temporary he would have left the place irrespective of the reasons mentioned in the definition of the term. The very fact that he was on a temporary visit implies that he was to come back sooner or later to his permanent abode. It cannot therefore be said in his case that he left India because of the civil disturb ances or the fear of such disturbances. Whether a person has left because of the reasons given in the definition of the term is again a question of fact which will depend upon the circumstances of each fuse.

22. The conclusion one arrives at from the above discussion in keeping with the dictionary meaning of the word residence and also the object and intent of the Legislature under the Act is that a person in order to qualify himself as a displaced person must have had a permanent residence or such continuous habitation in that part of British India which now forms India with no immediate intention of leaving the same but for the reasons given in the' definition of the term displaced person. There is no difficulty in the case of those who had their residence only in that part of British India which now forms India but difficulty arises in the case of persons who have their permanent residences in that part of British India which now forms part of Pakistan. In their case it would be a question of fact to be decided in the circumstances and light of each case whether the residence of these persons in that part of British India which now forms part of India was of such a character and nature that they would riot have abandoned the same but for the civil disturbances or the fear of such disturbances in that area. MANZOOR QADIR, C. J.‑--I agree. MUHAMMAD YAQUB ALI, J.‑--I agree. WAHIDUDDIN AHMAD, J.‑--I agree. MUHAMMAD DAUD KHAN, J.--‑I agree. A. H. Reference answered.