MUHAMMAD AKRAM, J. -This is a petition under Article 98 of the late Constitution of Islamic Republic of Pakistan, 1962 calling in question the validity of the Devolution and Distribution of Property (Amir of Bahawalpur) Order, 1969 made by the Central Government of Pakistan, published vide the President's Secretariat (States and Frontier Regions Division) Notification No. S. R. O. 34(H)/69, dated the 19th of February, 1969, in the Gazette of Pakistan (Extraordinary), dated the 20th of February, 1969. It deals with the devolution and distribution of the personal properties left on the demise of His Highness Alhaj Late Sir Sadiq Muhammad Khan Abbasi, Ameer of Bahawalpur State (hereinafter called the late Ameer) among his personal law heirs in accordance with the law. A part of these properties was given to the petitioner in his capacity as the present Ameer of Bahawalpur with the rider that he shall not transfer it by sale or otherwise, without the prior approval of the Central Government. Out of this property vested in him he was held liable to discharge all the debts and liabilities of the late Ameer. The rest of the properties left on the demise of the late Ameer of Bahawalpur were distributed between the petitioner and respondents Nos. 2 to 23. Each of these heirs was required to pay the estate duty in proportion to the share of the properties thus vested in him.
2. The petitioner in this case is Brigadier His Highness Nawab Muhammad Abbas Khan Abbasi, the present Ameer of Bahawalpur who has laid his claim to all the personal properties of the late Ameer of Bahawalpur in dispute to the exclusion of all others on the ground that under the law and custom of the State according to the rule of primogeniture, as the eldest son of the deceased, he was solely entitled to them. Respondent No. I is the Central Government which passed the impugned order dated the 19th of December, 1969 distributing the estate of the deceased between the petitioner and respondents Nos. 2 to 23 who are the other sons, daughters and the widows of the late Ameer of Bahawalpur. Respondent No. 24 is the Controller of Estate Duty, Pakistan Government who is alleged to have initiated proceedings for the levy of Estate Duty on the estate in dispute.
Before going into the allegations on which this writ petition is based it is necessary to narrate a few introductory facts for a better appreciation of the background in this case. During the British rule, within its geographical boundries, India was divided into two parts-British India and the Indian States mostly under the personal rule of the Rulers. These States were responsible for their own internal administration but the Crown in England accepted the responsibility for their external relations and defence as the paramount power in all India. In relation to these States the suzerainty belonged to the Crown. But as from 15th of August, 1947, with the attainment of the Independence the Dominions of Pakistan and India were set up in the territories of the former British India, and the Crown in England gave up its responsibility for the governance. In these circumstances on the 3rd of October, 1947 His Highness the late Ameer of Bahawalpur State acceded to Pakistan. Afterwards on the 17th of December, 1954 he entered into another agreement called the Bahawalpur Merger Agreement with the Governor-General of Pakistan. Thereby he ceded to the Government of the Dominion of Pakistan his sovereignty together with all the territories and the State was merged as a part of Pakistan territory. The stipulations contained in this agreement form the main bone of contention before us in these proceedings.
4. We shall now advert to allegations in this petition. It is alleged that before Independence of the Sub-Continent of British India the State of Bahawalpur was an independent sovereign State. Under the Indian Independence Act, 1947 the Indian States had the option to accede either to India or to the Federation of Pakistan. The late Sir Sadiq Muhammad Khan Abbasi who was at the relevant time the Ameer of Bahawalpur State, executed an Instrument of Accession dated the 3rd of October, 1947 whereby the State of Bahawalpur acceded to the Federation of Pakistan under section 6 of the Government of India Act, 1935 (as adapted by the Pakistan Provisional Constitution Order, 1947). Afterwards on the 17th of December, 1954 the Governor-General of Pakistan and the Ameer of Bahawalpur State executed another agreement (called the Bahawalpur Merger Agreement) with a view to provide for the accession of the State of Bahawalpur to the Dominion of Pakistan and for the merger of the same in the proposed one Unit in the Dominion to be known as the Province of West Pakistan. By this agreement the Ameer of Bahawalpur State ceded to the Government of the Dominion of Pakistan his "sovereignty and all rights, authority and powers as the Ruler of the State ,of Bahawalpur", and as a result of this cession the Government of Pakistan acquired the jurisdiction and control over the territory which was previously vested in the Ruler of the State of Bahawalpur. On and from the date of the Merger Agreement the Government of Pakistan undertook the responsibility- for the governance of the said State and its territories and solemnly guaranteed to the Ameer of Bahawalpur certain inviolable rights more fully described in Articles II to IV of t!1e Merger Agreement. Under this agreement the annual privy purse of the Ameer was fixed at Rs. 32 lacs and this amount was intended to cover all the expenses of the Ameer and his family. It was agreed and declared that the Ameer shall be entitled to full ownership, use and enjoyment of all private properties belonging to him on the date of this Agreement. His Highness the Ameer of Bahawalpur and his family were admitted to be entitled to the personal privileges, dignities and titles enjoyed by them. The Government of Pakistan guaranteed succession according to law and custom of the State of Bahawalpur to the personal rights, privileges, dignities and titles of His Highness as specified in Articles II to IV of the Merger Agreement. In pursuance to this Agreement a list of personal properties, movable and immovable, belonging to the Ameer of Bahawalpur State was actually prepared and was approved by the Governor-General of Pakistan on the 9th of June, 1955.
It is further alleged in this petition that after the promulgation of the Laws (Continuance in Force)
Order, 1958 (P. O. No. I of 1958), the President of Pakistan on the 16th of June, 1960 promulgated Rulers (Recognition of Successors) Order, 1960 (P. O. No. 15 of 1960). This inter alia provided that any reference to the Ruler of a State at any time in accession with Pakistan shall be construed as including a reference to the person recognised for the time being by the President as the successor to that Ruler. In May 1966, Sir Sadiq Muhammad Khan, late Ameer of Bahawalpur, died in London and the petitioner succeeded to him as the Ameer -of Bahawalpur in accordance with law and custom of the former Bahawalpur State with all the rights and privileges and the Government of Pakistan accorded its approval to it. Afterwards certain persons applied to the Central Government claiming succession to the personal properties left by the late Ameer of Bahawalpur. The petitioner disputed their claim and took up the position that according to the law and custom of the State, as guaranteed by Re Merger Agreement, he having succeeded to the Ameerate of Bahawalpur, he was solely entitled to all personal properties left by the Ameer, as part of his status as such. But on the 23rd of June, 1967, the Secretary, West Pakistan Land Commission, rote a letter to the Principal Secretary to His Highness the Ameer of Bahawalpur to the effect that the President's Secretariat, Government of Pakistan, had appointed a Commission consisting of Mr. Abu Nasar, C. S. P. And Mr. S. M. Elahi, C. S. P., Members of the Board of Revenue, West Pakistan, to conduct an enquiry on certain issues connectedwith the devolution/distribution of private (personal) property of the late Ameer of Bahawalpur. The petitioner made a representation against it to the President of Pakistan to the effect that such an enquiry could not be validly instituted. But his 'representation was rejected ride letter No. F. 1/5, S 1 ,SEC-7, 671 dated the 10th of July, 1967 sent by the States and Frontier Regions Division, Government of Pakistan, to the Principal Secretary: of the petitioner. He was informed that the Commission bad been appointed to conduct an- enquiry and make recommendations to the Government with regard to the distribution of the private properties of the late Ameer amongst his heir, under the authority vested in the Government by the Acceding States (Property) Ord r, 1961 (P. O. No. 12 of 1961). In reply to this letter the Principal Secretary to the petitioner wrote another letter to the Government and requested that the matter being an important one involving the interpretation of Constitutional Instrument, a reference might be made to the Supreme Court of Pakistan under .Article 59 of the late Constitution of the Islamic Republic of Pakistan' 1962, for obtaining an authoritative opinion upon the contentions raised by him. But this request was declined. In these circumstances on the 1st of August, 1967 the Commission visited Bahawalpur in order to conduct the proposed enquiry. Lt.-Col. A. K. Khanzada, Principal Secretary to the petitioner appeared before the Commission and raised certain preliminary objections which were later on incorporated in a letter addressed to respondent No. 1 on the 12th of August, 196'.'.
Those objections were to the following effect :
(i) That succession to the properties of the Ameer of Bahawalpur had always been governed by the custom of primogeniture according to which the title and the properties went to the eldest son:
(ii) That the Government having recognised His Highness the, present Ameer as the Ameer of Bahawalpur under the Rulers (Recognition of Succession) Order, 1960 it must be taken to have impliedly ruled that all the properties held by his late Highness went to his successor ; and
(iii) 'that even the claimants who moved the Government were not claiming any share in the properties which His late Highness owned on the date of the Merger Agreement, their claim being confined to the property subsequently acquired.
However, the Commission overruled all these objections on the ground that by the terms of their reference they were not authorized to go into them. In these circumstances the Enquiry Commission submitted its report to the President who gave his. Approval to the recommendations made by the Commission. On this on the .19th of February, 1969 the Government of Pakistan in the Ministry of . States and Frontier Regions Division, President's Secretariat, Rawalpindi passed the impugned Order called the Devolution and Distribution of Properties (Ameer of Bahawalpur) Order, 1969, published in the Gazette of Pakistan (Extraordinary) issued on the 20th of February, 1969. It is alleged that according to this Order
(i) the petitioner was in substance and in effect- deprived of the personal property of the Ameer of Bahawalpur duly recognized by, the Government and the same was. Distributed amongst respondents mentioned at S. Nos. 2 to 23 of the petition ;
(ii) the petitioner was further burdened with the liability of discharging all debts and liabilities of the late Ameer with a further limitation that the petitioner shall not by transfer, sale or otherwise dispose of any property vesting in him under this order ;
(iii) the petitioner was also directed to pay the Estate Duty payable under the Estate Duty Act in respect of the property passing on the death of the late Ameer to his share.
The petitioner has alleged that the Devolution and Distribution of Property (Ameer of Bahawalpur)
Order, 1969, in dispute, was opposed to the guarantees contained in the Bahawaipur Merger Agreement and is, therefore, void, inoperative and has no legal effect. According to the petitioner the stipulations contained in the Merger Agreement Were all along continued in full force in spite of the subsequent constitutional changes in the country. It is alleged that the Merger Agreement is in the nature of a Constitutional Instrument and a Treaty between two sovereigns. It was inviolable and oven ides the ordinary sub-Constitutional laws of Pakistan. In these circumstances, respondent No. 1 acted. Illegally in relying on the provisions of the Acceding States (Property) Order, 1961 (P. O. No. 12 of 1961) contrary to the stipulations and guarantees contained in the Merger Agreement which had the constitutional backing and validity. At any rate under Article 3 of the Acceding States (Property) Order, 1961-read with the Merger Agreement, the Central Government was bound to decide this dispute according to the law and custom of the State of Bahawalpur. But in disregard of this obligation the Central Government acted illegally in proceeding to divide and distribute the personal properties of the late Ameer of Bahawalpur between the petitioner and respondents Nos. 2 to 23 under the impugned Order. The petitioner maintains that according to the law and custom of the former State of Bahawalpur, under the rule of primogeniture applicable to the family he was entitled to succeed to the entire estate to the exclusion of all other claimants. He was solely entitled to all the private and personal properties left on the demise of the late Ameer of Bahawalpur by virtue of his appointment and recognition as his successor to the Ameer ate and Gaddi as the Ruler. Another ground of attack levelled against the impugned Order in this writ petition is that at any rate under the Acceding States (Property) Order, 1961 the Central Government had no lawful authority to appoint the Enquiry Commission for holding the enquiry into this dispute. Moreover, in the circumstances of this case the Enquiry Commission and the Government of Pakistan acted illegally and against the fundamental principles of natural justice in finalising these proceedings against the petitioner without any reasonable opportunity afforded to him to show cause against the impugned Order. Even otherwise the impugned Order passed by the Central Government is not a speaking order and it does not give any reason whatever for this decision taken by it. It is further alleged that respondent ho. 1 acted illegally in placing an embargo against the transfer of these properties by the petitioner and also by holding him solely responsible for all the debts incurred by the late Ameer of Bahawalpur during his lifetime. Moreover, no estate duty could have been levied on the property in dispute. Also these lands held by the late Ameer of Babawalpur could not be resumed under the Land Reforms Regulations (M. L. R. No. 64). In his capacity as a Ruler and as a sovereign he was entitled to the privileges and complete immunity from all taxes. In the end the petitioner reiterated that the properties in dispute were not liable for the Estate Duty and the proceedings initiated in that behalf by the Controller of Estate Duty for the assessm ent of the Estate Duty against the petitioner, were without lawful authority.
On these allegations the petitioner has prayed that the Devolution and Distribution of Property (Ameer of Bahawalpur) Order, 1969 in question passed by respondent No. 1 on the 19th of February, 1969, published in the Gazette of Pakistan (Extraordinary) dated the 20th February, 1969 may be declared to be without lawful authority and of no legal effect and respondents Nos. 1 to 24 may be directed to refrain from taking any action in pursuance thereto.
5. In the written statement filed by respondent No. 1, the Government has raised a preliminary objection to the effect that this petition under Article 98 of the late Constitution for the enforcement of the terms of the Merger Agreement in question was not competent. On the merits the respondent admitted that in the year 1947 the late Ameer of Bahawalpur had executed the Instrument of Accession whereby the State of Bahawalpur acceded to the Federation of Pakistan.
Afterwards, in the year 1954 he executed the Merger Agreement by virtue of which he ceded to the Government of Pakistan his sovereignty, rights and authority as the Ruler of the State. In the result the former State of Bahawalpur was merged into the Province of West Pakistan within the Dominion .Of Pakistan. The respondent admitted that the petitioner was duly recognised by the Government of Pakistan as the Ameer of Bahawalpur in succession to his father. But it is denied that the Merger Agreement was immutable and overrides the ordinary laws of the land. The respondent submitted that after the demise of the late Ameer some of his heirs approached the Government of Pakistan and laid their claim for succession to his personal properties. They applied to the Government for a settlement of this dispute between his heirs. In these circumstances the Government decided to proceed in the matter with a view to resolve this dispute in accordance with Article 3 of the Acceding States (Property) Order, 1961. The petitioner asserted his claim and represented that by virtue of the rule of primogeniture he was entitled to succeed to the entire property in dispute to the exclusion of all the other heirs of the late Ameer according to the law and custom of the former Bahawalpur State. But this contention was repelled by the Government. It is further alleged that even if any such special custom was prevailing in the ruling family of the late Ameer of Bahawalpur in the past, it had lost its application by virtue of section 2 of the West Pakistan Muslim Personal Law (Shariat Application) Act, 1962 read with the provisions of the Acceding States (Property) Order, 1961 for the distribution of the property left by him. In the opinion of the Government this dispute was not a complicated one. The Government decided to appoint a Commission to hold an enquiry into the dispute and the Commission submitted its report. The Government accepted the recommendations made by the Enquiry Commission and gave effect to it through the impugned Order called the Devolution and Distribution of Property (Ameer of Bahawalpur) Order, 1969 for the division and distribution of the personal property left by the late Ameer of Bahawalpur, among the petitioner and respondents Nos. 2 to 23 who are his heirs under the Muslim Law. This equitable distribution of the estate was made among them keeping in view the principles of natural justice and fair play and the needs of the individual heirs. It is further alleged that the petitioner and the other heirs of the deceased could not claim exemption from the fiscal and other laws of the land.
At best, according to the respondent, the Merger Agreement was in the nature of a treaty with the ex-Ruler and the obligations incurred therein could not override the ordinary law in force in Pakistan. It is alleged that the powers vested in the Government to decide this dispute concerning the devolution and distribution of property belonging to the Ruler of an acceding/merged State are unfettered. Its decision in the matter was final and binding for all concerned and the jurisdiction of the Courts to question the validity of the decision of the Government in this behalf was expressly barred under Article 7 of the Acceding State (Property) Order, 1961. The respondent has further averred that by virtue of the alleged guarantees and the assurances contained in the Merger Agreement the petitioner cannot claim immunity from any legislation in future and he was not above the law, it is alleged that the petitioner was entitled to his rights and privileges but subject always to the law of the land, promulgated from time to time in the light of the changes in the social, political and economic structure of the society. The respondent denied that the guarantees, assurances, rights and privileges secured under the Merger Agreement in favour of the late Ameer of Bahawatpur have continued in force and are intact. In this connection it is alleged that unlike the provisions in clause (3) of Article 202 of the 1956-Constitution there were no express provisions in the Constitution of 1962 for affording the constitutional protection to the Merger Agreement under it. It is, therefore, denied that the Merger Agreement Has sacrosanct and inviolable. The respondent No. 1 submitted that all reasonable opportunity was afforded to the petitioner to represent his case and his objections were duly considered. The Government, however, did not consider it necessary to refer this dispute to the Supreme Court for its opinion in the matter. The Commission was merely entrusted with the enquiry into this dispute but the final decision in the case was duly taken by the Government itself after a full consideration of the recommendation made by it. The petitioner in his capacity as a citizen of Pakistan, could not claim immunity from the Martial Law Regulation, the fiscal and other laws of the land and was subject to them. The contesting respondent No. 1 accordingly prayed that the writ petition may be dismissed with costs.
6. In reply to the writ petition, respondent No. 3 for self and on behalf of respondents Nos. 2, 4 to 7 and 9 to 23 filed his counter-affidavit. He admitted the execution of the Instrument of Accession dated the - 3rd of October, 1947 by the late Ameer of Bahawalpur. It was followed by the Babawalpur Merger Agreement dated the 17th of December, 1954, executed between him and the then Governor-General of Pakistan. According to these respondents, this agreement was inviolate and paramount in character and its terms could not be subsequently varied or altered. They admitted that on the demise of the late Ameer of Bahawalpur the petitioner was recognized as his successor in accordance with the law and custom of the former State of Bahawalpur. But, it is alleged, that the late Ameer of Bahawalpur promulgated the Shariat Act of 1951 by means of Notification No. 220/L. D. Dated the 4th of March, 1951 which was applicable throughout the former State of Bahawalpur to all its residents. Even otherwise, so it is alleged, the original residents of the State of Bahawalpur under the Customary Law were, bound by the Shariat. In support of this contention the respondents have produced certified copies of the Wajab-ul-Arz for some of the estates in the Tehsil of Bahawalpur and Ahmadpur Sharqia. It is alleged that after the death of the late Ameer the contesting respondents Nos. 2 to 23 were disillusioned by overt acts and conduct of the petitioner, in denying their legitimate right to the inheritance and wanton disposition of properties entrusted to his care. This compelled them to move the President of Pakistan in February 1967 for his intervention and for a fair distribution of their, share in the properties left by the late Ameer of Bahawalpur. They denied that by virtue of the succession to the Ameerate the petitioner became solely entitled to the personal properties as a part of his status as the Ameer of Bahawalpur. It is alleged that the petitioner, when he was confronted with the demand made by the contesting respondents for the distribution of these properties in dispute, took up the position that the matter was referable to the Government. It was he who had compelled them to apply to the Central Government for its decision which is now being challenged by him. It is, therefore, alleged that this petition was not made in good faith and the petitioner was also estopped from challenging the impugned Order. According to the respondents the Government lawfully appointed the Enquiry Commission and in case the petitioner was aggrieved against the Order he could have immediately invoked the jurisdiction of this Court. But he took his chance and waited for the decision of the Government. After it has gone against him, he could not resile from it and turn round now to challenge the impugned Order lawfully passed by the Government. In these circumstances the petitioner has disabled himself from seeking the extraordinary relief from this Court under Article 98 of the Constitution. It is alleged that the impugned Order was lawful. It has made an equitable distribution of the properties left by the late Ameer of Bahawalpur, and substantial justice was done between the parties. As such this is not a fit case for interference by this Court in these proceedings. These contesting respondents have further alleged that the succession of the petitioner according to the custom of the former State of Bahawalpur was confined to the Ameerate, having titular significance, personal privileges, honour and dignity attached to it as the Ameer of Bahawalpur. It was not applicable to the personal properties left by the late Ameer on his demise and they were liable to be distributed amongst all the heirs in accordance with the Shariat Law. This matter in dispute was lawfully referred to the President of Pakistan and his decision in the matter was final and binding on the parties. According to these respondents they had voluntarily agreed and in pursuance to it a part of the properties forming the estate of the deceased were left with the petitioner attached to the Gaddi as the Ameer of Bahawalpur for the purposes of maintaining the status and dignity of the office as such. The rest of the properties in dispute were equitably distributed amongst the petitioner and respondents Nos. 2 to 23.
7. Respondent No. ?4, the Controller of Estate Duty, in his separate written statement has generally alleged that paras. 1 to J I of the writ petition did not directly concern him. He, however, -denied the contention that the estate duty was not livable in respect of the personal and private property in dispute left by the late Ameer of Bahawalpur. As a national of Pakistan laws of the land. . Were applicable to him and in the. Absence of any exemption his estate was liable for the duty under the Estate Duty Act. It is alleged. That the proceedings for the assessment of the estate duty were duly initiated but had to be stayed under the order passed by this Court. According; to the respondent the Estate Duty Act is a self-contained Code and the petitioner could have made a recourse under it for any adequate relief. In these circumstances, so it is alleged, this writ petition against respondent No. 24 was not competent.
8. We have heard lengthy ;arguments addressed to us by the learned counsel for the parties for the whole of a week in this case. Before us at the hearing Mr. A. K. Brohi, learned counsel for the petitioner, reiterated some of -his objections taken in the writ petition against the impugned Order.
He also filed before us a concise summary of the points raised by him during his arguments. In nutshell he contended that the Merger Agreement was a Constitutional Instrument. It was kept alive and continued in force by virtue of the suitable provisions made to this effect in the successive Constitutions promulgated in this country. All along the Merger Agreement had a constitutional validity and it was not subject to the ordinary law of the land. The Government of Pakistan was bound by the guarantees and assurances extended to the late Ameer of Bahawalpur in the Merger Agreement and the provisions contained in the Acceding States (Property) Order, 1961 (President's Order No. 12 of 1961) did not have the effect of overriding them. Even otherwise, according to the learned counsel, President's Order No. 12 of 1961 was. Not applicable to this case. At any rate even under President's Order No. 12 of 1961 read with the Merger Agreement the Government of Pakistan was bound to decide this dispute regarding succession to the personal properties of the late Ameer of Bahawalpur in accordance with the law and custom of the State, under which, by virtue of the rule of primogeniture, petitioner alone was entitled to them. In passing the learned counsel also challenged the validity of President's Order No. 12 of 1961 as it did not lay down any norms and gave unguided and uncontrolled powers to the Central Government for its decision in such matters. He even referred to the latest pronouncement of their Lordships of the Supreme Court in the; case of Miss Asma Jilani v. The Government of the Punjab and others (PLD1972SC139) in attempting to challenge the validity of the President's Order No. 12 of 1961. The learned counsel further submitted that the Government acted illegally in delegating its own function by appointing the Commission for enquiry into this dispute, which was within its own exclusive competence. The Commission, during the course of the enquiry before it and the Central.
Government in the course of the impugned Order made by it, did not allow any reasonable opportunity to the petitioner to represent his case and acted against the principles of natural justice. It was also argued that the Central Government has failed to pass a speaking order. The impugned order was altogether arbitrary. It does not give any reasons and it is difficult to reconcile it on the basis of any rule of succession. The learned counsel also contended that the petitioner was not liable for the Estate Duty sought to be imposed on this estate.
9. On behalf of the, Government of Pakistan Mr. Yahya Bukhtiar, the learned Attorney-General appeared before us. He was assisted by Mr. Mumtaz Hussain, Advocate, who also addressed his arguments before us on behalf of respondent r4o.
1. The learned Attorney-General maintained before us that the Merger Agreement, forming the sheet-anchor of the case of the petitioner, was a treaty arrived at between the two sovereign States.
This agreement was essentially an Act of State. -As such it cannot be called in question in any of the Municipal Courts in the country and their jurisdiction was altogether barred in the matter.
Alternatively it was contended that the Merger Agreement was trot sacrosanct. It was itself subject to the ordinary law of the land and could not prevail over it. In particular it could be modified and altered by the provisions contained in President's Order No. 12 of 1961. The learned Attorney-General also relied on section 7 of the President's Order No. 12 of 1961 to contend that the jurisdiction of this Court to entertain this dispute was also barred under it. He next submitted that, at any rate, the contractual obligations incurred between the ,parties under the Merger Agreement could 'not be enforced by invoking the extraordinary jurisdiction of the High Court under Article 98 of the Constitution. If so advised, the petitioner should have made a recourse to the ordinary Courts for the specific enforcement of this agreement. Last, but not the least, he took pains to explain that in this Case the Central Government. Did not take sides, with the claimants against the petitioner. The Government did not want their dispute concerning the distribution of the private property of the late Ameer of Bahawalpur among his heirs, to be dragged to a Court of law. The Government, therefore, lawfully decided to take cognizance of this dispute in accordance with the provisions contained in President's Order No. 12 of 1961 and passed the impugned Order for a fair and equitable distribution of the estate left on the demise of the late Ameer of Bahawalpur among its heirs. The learned counsel repelled all the contentions advanced on behalf of the petitioner against the validity of the impugned order on the various grounds. He also contended that this was not a fit case for interference by this Court.
10. On behalf of respondents Nos. 2 to 7 and- 9 to 23 their learned counsel by and large supported the learned Attorney-General on the merits of the impugned Order. He submitted that it was lawfully passed by the Central Government by way of an equitable and fair administration of the estate left by the late Ameer of Bahawalpur among his heirs. He, however, supported the petitioner to contend that the estate was not liable for the estate duty.
11. Sh. Abdul Haque, Advocate on behalf of the respondent. No. 24, the Controller of Estate Duty, contended that in the absence of any express exemption allowed to the late Ameer of Babawalpur the private properties belonging to him were not immune. From the provisions of the Estate Duty Act: Stricto sensu it was a charge on. The property which was accountable for the duty under the Act. He submitted that this writ petition was not competent to challenge the proceedings initiated against the heirs of the deceased in accordance with the law under the Estate Duty Act.
12. The impugned Order called the Devolution and Distribution of Property (Ameer of Bahawalpur)
Order, 1969 was made by the Government of Pakistan on the 19th of February, 1969-, an purported exercise of the powers vested in it under Article 3 of the Acceding States (Property) Order, 1961(President's Order No. 12 of 1961). It was published in the Government of Pakistan. President's Secretariat (State and Frontier Regions Division) Notification No: S. R. O. 34(R)/69, dated the 19th of February, 1969, in the Gazette of Pakistan (Extraordinary) issued on the 20th of February, 1969. The operative part of this Order is reproduced below In extenso : "(1) This Order may be called the Devolution and Distribution of Property (Ameer of Bahawalpur)
Order, 1969..
2. (I) Subject to the provisions of this Order, the properties of the late Ameer set out in the First Schedule shall belong to, and vest in, Brigadier His Highness Muhammad Abbas Abbasi, the Ameer of Bahawalpur (hereinafter called the Ameer), in his capacity as, and for so long as he is, the Ameer.
(2) Subject to the provisions of sub-paragraph (3). The Ameer shall from out of the property vested in him under sub-paragraph (1) discharge all debts and liabilities of the late Ameer.
(3) Without the previous approval of the Central Government, the Ameer shall not transfer by sale or otherwise any property vested in him under sub-paragraph (1) nor in any. Manner create any interest in or encumbrance on such property.
(4) A transfer made or interest or encumbrance created in contravention of sub-paragraph (3) shall be void.
3. The properties of the late Ameer set out in the Second Schedule shall devolve on, and be distributed amongst, the heirs of the late Ameer named in the said Schedule in the manner and to the extent indicated in that Schedule.
4. The Ameer and each other heir of the late Ameer shall pay the estate duty payable in respect of the property passing on the death of the late Ameer in such proportion as the property vesting in, or devolving upon, the Ameer or such heir under this Order bears to the property so passing.
5: Nothing in this order shall apply to property of the late Ameer outside Pakistan."
13. As a result of this Order the movable and immovable properties fully described in the first Schedule attached to the Order were held to belong to and were vested in the petitioner, as the Ameer of Bahawalpur, in his capacity as and for so long as he is the Ameer. The rest of the properties, movable and immovable, were distributed in severalty among the petitioner and respondents Nos. 2 to 23, all the different heirs of the late Ameer of Babawalpur, in different moieties, as set out in the Second Schedule to the Order. It was also expressly stipulated in this Order that the petitioner shall front out of the properties mentioned in the First Schedule, vested in him, in his capacity as the . Ameer of Bahawalpur, discharge all the debts and liabilities of the late Ameer. In this connection, an embargo was placed on him that he shall not without the previous approval of the Central Government transfer by sale or otherwise any of those properties mentioned in the First Schedule or create any encumbrance on them. Under this Order the petitioner and respondents Nos. 2 to 23 as the heirs of the late Ameer of Babawalpur, were held to be liable for the estate duty payable in respect of the properties that have devolved on them.
14. The first and foremost question that arises for consideration before us relates to the legal validity and the force of the Bahawalpur Merger Agreement executed between the then Governor- General of Pakistan and the late Ameer of Bahawalpur State on the 17th of December, 1954 and the, weight to be attached to it in these proceedings . In order to fully appreciate the contentions advanced by the learned counsel for the parties before us in this connection, it is necessary to examine the history of the constitutional changes brought about in the former State of Bahawalpur before its merger with Pakistan.
15. During the British rule within its geographical boundaries India was divided into two parts-the British India and the Indian States. The Indian States at the time were under the suzerainty of the Crown a;, the paramount power in all India. The States were responsible for their own internal administration. But the Crown was responsible for their external affairs and Defence.
16. But as from the 15th of August, 1947, under section 1(1) of the A Indian Independence Act, 1947 two independent Dominions of India and Pakistan were set up. His Majesty in the United Kingdom gave up its, responsibilities for the Government of the territories which immediately before the 15th day of August, 1947 were included in British India. Under section 7(1)(b) of the Act as from the 15th day of August, 1947, the suzerainty of His Majesty over the Indian States also lapsed and with it, all treaties and agreements in force at the time between His Majesty and the Rulers of the Indian States.
17. Simultaneously with the independence as from the 15th day of August, 1947, Pakistan was established as a Federation in accordance with section 5(1) of the Government of India Act, 1935 (as adapted by the Pakistan (Provisional Constitution) Order, 1947). The Federation of Pakistan consists of the following units :
(a) Governor's Provinces,
(b) Chief Commissioners' Provinces.
(bb) Any other areas that may with the consent of the Federation 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 provided in the Act.
18. The mode of accession of the princely States in Pakistan was laid down in section 6 of the Government of India Act, 1935 as adapted. In this connection subsection (1) of section 6 provided that the Governor-General might signify his acceptance, of an Instrument of Accession executed by the Ruler of the State, whereby he for himself, his heirs and successors declared that he acceded to the Federation as established under the Act, with the intent that the Governor-General, the Federal Legislature, the Federal Court or any other Federal authority established for the purposes of the Federation, shall, by virtue of his Instrument of Accession, but subject always to the terms thereof, and for the purposes of only of the Federation, exercise in relation to his State such functions as may be vested in them by or under the Act. In subsection (2) it was further laid down that an Instrument of Accession shall specify the matters which the Ruler accepted as matters with respect to which the Federal -Legislature may make laws for his State, and the limitations, if any, to which the power of the Federal Legislature to make laws for his State, and the exercise of the executive authority of the Federation in his State, were respectively to be subject. Under subsection
(3) a Ruler may, by a supplementary Instrument executed by him and accepted by the. Governor- General, vary the Instrument of Accession of his State by extending the functions which by virtue of that Instrument were exercisable by the Governor General or any Federal Authority in relation to his State. The proviso to subsection (4) is important for the purpose of this case and is reproduced In extenso: "Provided that, if any Instrument has in fact been accepted by the Governor-General, the validity of that Instrument or of any of its provisions shall not be called in question and the provisions of this Act shall, in relation to the State, have effect subject to the provisions of the Instrument."
19. Under section 7 of the Government of India Act, 1935 (as adapted) the executive authority of the Federation was exercised by the Governor-General, and section 8 defines the extent of the executive authority of the Federation in this connection. It extended to all matters with respect to which the Federal Legislature had the power to make laws. In this connection reading this section with the Entry No. 3 of List I (Federal Legislative List) of the Seventh Schedule to Act, it is evident that the executive authority of the Federation also extended to the external affairs and the implementing of treaties and agreements with other countries. According to proviso (il) to subsection (1) of section 8 of the Act the executive authority of the Federation did not save as expressly provided in the Act, extend in any Federated State, save to matters with respect to which Federal Legislature has powers to make laws for that State, and the exercise thereof in each State was subject to such limitations, if any, as may be specified in the Instrument of Accession of that State. In this connection it was further laid down in subsection (2) that the executive authority of the Ruler of a Federated State shall, notwithstanding anything in this section, continue to be exercisable in that State with respect to matters with respect to which the Federal Legislature bad power to make laws for that State except in so far as the executive authority of the Federation became exercisable in the State to the exclusion of the executive authority of a Ruler by virtue of a Federal law.
20. On a combined reading of the above provisions it is evident that the Instrument of Accession formed the charter for accession of a state to the Federation of Pakistan and was of constitutional importance to the Federating State under the Government of India Act, 1955. By virtue of the Instrument of Accession but subject always to the terms thereof, the Federal Executive, Legislature, Court and other authorities were enabled to exercise their functions in relation to the a--ceding State. It was only with respect to specific matters and subject to the limitations, if any, embodied in the Instrument of Accession, with respect to which the Federal Legislature and the Executive could exercise their powers for the State. It was expressly laid down in the Proviso to section 6(4) that the provisions of the Government of India Act shall, in relation to the State, have effect subject to the Instrument of Accession. Moreover, the exercise of the executive authority of the Federation in any Federated State was subject to such limitations, if any, as may .Be specified in- the Instrument of Accession of the State. Side by side with this the executive authority of the Ruler of a Federated State Shall continue to be exercisable in the State in relation to all other matters not expressly provided in the Instrument of Accession. In this connection in the case of Messrs Abbasi Textile Mills Ltd. v. The Federation of Pakistan and others (PLD 1958 SC 189), the Supreme Court of Pakistan, in connection with a Supplementary Instrument of Accession dated 29-4-1951 executed by the Ruler of Bahawalpur State and accepted by the Governor-General of Pakistan, after referring to the language of the proviso to subsection (4) of section 6 of the Government of India Act, observed that : "These words as urged by the learned Attorney-General put it beyond doubt that once the Instrument is accepted the provisions of the Act shall be subordinate to the provisions of the Instrument." All this shows that an Instrument . Of Accession was a constitutional instrument of paramount importance to the acceding State.
21. In the case of Bahawalpur State, the initial Instrument of Accession was executed by Sir Sadiq Muhammad Khan Abbasi, the late Ameer of Bahawalpur in the exercise of his sovereignty in and over the State on the 3rd of October, 1947. Thereby he acceded to the Federation of Pakistan in accordance with section 6(1) of the Government of India Act, 1935 (as adapted) with respect to certain matters specified in the schedule attached thereto, such as Defence, External Affairs, Communications and Ancillary matters only. It was expressly stipulated that the terms of this Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act unless such amendment was accepted by the Ruler by a supplementary Instrument of Accession. It was further stipulated that 'nothing in the Instrument of Accession shall affect the continuance of the sovereignty in and over the State of Bahawalpur by the Ruler, save as provided by or under the Instrument.
22. Afterwards on the 11th of April, 1952, an agreement was executed between His Highness the Ameer of Bahawalpur and the Governor-General of Pakistan. It was decided that the Constitution of Pakistan adopted by the Constituent Assembly of Pakistan shall be the Constitution for the State of Bahawalpur as for the other parts of Pakistan and shall be in force as such in accordance with the tenor of its provisions. In that connection it was thought expedient that the rights, privileges and dignities, including the dynastic succession and privy purse of His Highness the Ameer of Bahawalpur shall be .Determined by an agreement between him and the Government of Pakistan.
It was, therefore, agreed that His Highness the Ameer of Bahawalpur shall be entitled to receive from the revenue of the State of Babawalpur for his privy purse a sum not exceeding Rs. 29,50,000 free of all taxes. This amount was intended to cover all the expenses of His Highness the Ameer of Babawalpur and his family including expenses on account of his personal staff, bodyguard, tours, hospitalities, maintenance of his residence, marriages and other ceremonies. The amount was payable to the Ameer in four equal instalments and its payment was guaranteed by the Government of Pakistan. It was also expressly stipulated that His Highness the Ameer of Babawalpar, shall be entitled to the full ownership, use and enjoyment of all the jewels, jewellery, ornaments, shares, securities and other private properties, movable as well as immovable, not being State properties, belonging to him on the date of the agreement. In this connection it was agreed that His Highness the Ameer shall furnish to the Government of Pakistan lists of the - movable and immovable property held by him as his private property. According to another stipulation in this agreement, His Highness the Ameer and members of his family were entitled to all the personal privileges, dignities and titles enjoyed by them whether within or outside the territory of the State immediately before it. Under this agreement, the Government of Pakistan guaranteed the succession according to law and custom of the State of Bahawalpur to the Gaddi of the State and to the personal rights, privileges, dignities and titles of His Highness the Ameer of Bahawalpur.
23. It appears that while the establishment of the Province of West Pakistan as One Unit was in the offing, on the 17th of December, 1954, a further agreement known as the "Bahawalpur Merger Agreement" was executed between the Governor-General of Pakistan and His Highness the Ameer of Bahawalpur State. In the best interest of the State of Bahawalpur as well as the Dominion of Pakistan it was considered desirable to provide for the accession of territories of the said State to the Dominion of Pakistan and for the merger of the same in the proposed One Unit of the Province of West Pakistan within the Dominion. This agreement was executed in supersession of and abrogated all the Instruments of Accession and agreements previously executed between the Governor-General of Pakistan and His Highness the Ameer of Bahawalpur. In fact almost all of the material terms of the above-mentioned agreement dated the 11th of April, 1952 were virtually lifted from there and inserted into this agreement.
24. This agreement has formed the main bone of contention before us and it is, therefore, necessary to reproduce its terms and conditions here in extenso : "Article I-His Highness the Ameer of Bahawalpur hereby cedes to the Government of the Dominion of Pakistan his sovereignty and all high rights, authority and prowers as Ruler of the State of Bahawalpur together with all his territories and the authority, jurisdiction and powers for the governance of the said State and territories shall vest in the Government of Dominion on and from the day to be fixed by the Governor-General of Pakistan, hereinafter referred as "the said day".
As from the said day the Government of the Dominion shall exercise all powers, authority and jurisdiction for the governance of the said State and territories in such manner and through such agency as it may think fit.
Article II -His Highness the Ameer of Bahawaipur shall be entitled to receive annually from the Government of Pakistan for his privy purse a sum of Rs. 32 lacs (rupees thirty-two lacs only) free of all taxes.
The amount is intended to cover all the expenses of His Highness the Ameer of Bahawalpur and his family, bodyguard, tours, hospitality, maintenance of his residence, marriages and all family ceremonies.
(2) The said amount shall be payable to the Ameer of Bahawalpur in four equal instalments at the beginning of each quarter in advance.
The payment of said amount as herein provided is guaranteed by the Government of Pakistan.
Article III.-His Highness the Ameer shall be entitled to the full ownership, use and enjoyment of all the jewels, jewellery, ornaments, securities and other private properties, movable as well as immovable, not being State, properties, belonging to him on the date of this agreement.
If any dispute arises as to whether any item of property is the private property of His Highness or State property, it shall be decided by the Governor-General of Pakistan whose decision shall be final and binding on all concerned.
Article IV.-His Highness the Ameer, Her Highness and His Higness's children shall be entitled to all the personal privileges, dignities and titles enjoyed by them whether within or outside the territory of the State immediately before the date of this agreement.
Article V.-The Government of Pakistan guarantees the succession according to law and customs of the State of Bahawalpur to the personal rights, privileges, dignities and titles of His Highness the Ameer of Bahawalpur, as specified in Articles 11 to IV above.
Article VI.-This agreement abrogates all the Instruments of Accession and agreements between the Governor-General of Pakistan and His Highness the Ameer of Bahwalpur signed so far."
25. Now to continue the history of the constitutional changes that visited this country in the recent past, as from the 14th of October, 1955. The Province of West Pakistan was established in accordance with section 2(I) of the Establishment of West Pakistan Act, 1955 by incorporating and integrating the following into One Unit :
(i) The Governor's Provinces of the Punjab, the North-West Frontier and Sind.
(ii) The Chief Commissioner's Province of Baluchistan and the Capital of the Federation.
(iii) The States of Bahawalpur and Khairpur, and the Baluchistan States Union.
(iv) The Tribal Areas of Baluchistan, the Punjab and the North-West Frontier, and the States of Amb, Dir and Swat (called the specified territories).
26. As we all know, on the 23rd of March, 1956, the Constitution of the Islamic Republic of Pakistan, 1956, was promulgated. This had repealed the Government of India Act, 1935 and the Indian Independence Act, 1947, which had held the field for so long. Under Article 1 of this Constitution it was laid down that Pakistan shall be a Federal Republic comprising the following territories :
(a) the territories of the Province of East Pakistan and West Pakistan;
(b) the territories of the States which are in accession with or may accede to Pakistan ;
(c) the territories which are under the administration of the Federation but are not included in either Province ; and
(d) such other territories as may be included in Pakistan.
It may be seen that by this time the territory of the former State of Bahawalpur was already merged into the Province of West Pakistan and consequently included in the territories of Pakistan under clause (a) above. It is of some importance to mention here that Article 202 of this Constitution contained provisions with respect to the agreements relating to the Rulers. It was laid down in clause (1) of Article 202 that where, under any agreement made at any time before or after the Constitution Day between the Government of Pakistan and the Ruler of a State which at that time was in accession with Pakistan, the payment of any sums free of tax has been guaranteed or assured by the Government of Pakistan to that Ruler as his privy purse, those sums shall be charged on the Federal Consolidated Fund and shall be paid out of that Fund to the Ruler free of tax. In this connection it was further laid down in clause (2) of this Article that where the territories of any- such Ruler as aforesaid are comprised within a Province, there shall be charged on the Consolidated Fund of that Province, and be paid out of that Fund to the Federal Government, any sum which that Government has paid to the Ruler under clause (1). Clause (3) of this Article safeguarded the guarantees and assurances given to the Ruler of a State. It is reproduced below for facility of reference: "In the exercise of any power to make laws, and in the exercise of the executive authority of the Federation or a Province, due regard shall be had to the guarantees or assurances given under any such agreement as is referred to in clause (1) with respect to the personal rights, privileges and dignities of the Ruler of any such State as is referred to in that clause."
27. In this manner a Constitutional recognition was given to an agreement made at any time, between the Government of Pakistan and the Ruler of an acceding State. The payment of his privy purse free of tax was guaranteed in his favour. Assurances and guarantees given by the Government were also extended to the Ruler of such a State with respect to his personal rights, privileges and dignities under the agreement under Article 202(3) of the Constitution. In its application to the facts of this case before us, the assurances and guarantees given by the Government of Pakistan to the Ameer of Bahawalpur in the "Bahawalpur Merger Agreement dated the 17th of December, 1954" were recognised under Article 202(3) of the 1956-Constitution. Also under Article 224 this agreement as a "legal instrument" was continued in force like all other laws in force in Pakistan at the time of that Constitution. In this connection it was also laid down in Article 231(3) that all rights, liabilities and obligations of the Federal Government or the Government of a Province, whether arising out of any contract or otherwise, shall, as from the Constitution Day, be respectively the .Rights, liabilities and obligations of the Federal Government and of the Corresponding Province.
28. But the 1956-Constitution did not last long. On the 7th of October, 1958, Martial Law was clamped on the country and the Constitution was abrogated. In pursuance to the proclamation of the Martial Law the President of Pakistan promulgated the Laws (Continuance in Force) Order, 1958 (President's Order No. 1 of 1950. In Article 2(t) of this Order it was laid down that notwithstanding the abrogation of the 1956-Constitution by the proclamation of Martial Law and subject to any Order of the. President or Regulation made by the Chief Administrator of Martial Law, the Republic of Pakistan shall be governed as may be in accordance with the late Constitution. Article 3 of this Order provided that no Court or person shall call in question any Order made in pursuance to this proclamation or any Martial Law Order or Martial Law Regulation. It was further laid down in Article 4(1) of this Order that notwithstanding the abrogation of the late Constitution and subject to any Order of the President or Regulation made by the Administrator of Martial Law, all laws, rules, bye- laws, 'notifications and "other legal instrument" in force in Pakistan or in any part thereof or having extra territorial validity, immediately before the Proclamation, shall so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, repealed or amended by competent authority. This has the effect of continuing in force the Bahawalpur Merger Agreement which was kept alive as a legal instrument, in spite of the proclamation of Martial Law.
29. In those days on the 16th of June, 1960, the President of Pakistan, in pursuance of the Proclamation, in exercise of his powers, promulgated the Rulers (Recognition of Successors) Order, 1960 (President's Order No. 15 of 1960). This in effect provided for the recognition by the President of a successor of the Ruler of a State in accession with Pakistan.
30. In respect of the States in accession with Pakistan, on the 21st of August, 1961, the President of Pakistan, in pursuance of the proclamation of Martial Law, also promulgated the Acceding State (Property) Order, 1961 (President's Order No. 12 of 1961). An important provision in Article 3 o this Order lays down that where any question arises directly or indirectly between persons claiming to be the heirs and successors of the Ruler of a State or claiming to succeed to the State, concerning the devolution and distribution of any property of that State or of the Ruler, the question shall be decided by an order of the Central Government. In this manner the Central Government was made the arbitrator for the settlement of the dispute between the persons claiming to be the heirs and successors of the Ruler, concerning the devolution and distribution of his property.
31. Afterwards on the 1st March 1962 the Constitution of the Islamic Republic of Pakistan, 1962 was promulgated in the country. Pakistan was set up as a, Republic consisting of the Province of West Pakistan inclusive of the territory of the former State of Babawalpur, the Province of East Pakistan and such other States and territories as may be included in Pakistan. It is noteworthy that in this Constitution there was no provision' like the one in claw a (3) of Article 202 of the 1956 Constitution, reproduced above, directly extending the constitutional protection to the guarantees and assurances contained in any agreement between the Government of Pakistan and the Ruler of State in accession with Pakistan. Although in Article 225(1) of this Constitution it was generally provided that all existing laws shall, subject- to this Constitution, continue in force so far as applicable and with the necessary adaptation, until altered, repealed or amended by the appropriate Legislature.' In this context, the term "existing laws" was defined in clause 7 of Article 225 to mean all laws (including Ordinances, Orders-in-Council, Orders, rules, bye-Laws, regulations and Letters Patent constituting a High Court, and any notification and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan or having extra-territorial validity, immediately before the commencing day of the Constitution. Also, according to Article 232(3) of the Constitution all rights, liabilities and obligations of the Government of Pakistan or of 'the Government of a Province, whether arising out of contract were continued to be the rights, obligations and liabilities of the Central Government or of the Provincial Government under this Constitution.
32. In the background of these constitutional changes discussed above, applicable to the territories of the former State of Bahawalpur, it is necessary to come in closer grips with the main contention advanced by the learned counsel for the petitioner. In this connection he argued with perseverance and vehemently submitted that the "Bahawalpur Merger Agreement dated the 16th of December 1954" executed between the late Ameer of Bahawalpur and the then Governor- General of Pakistan was sacrosanct and immutable. As an Instrument of Accession executed by the Ruler and accepted by the Governor-General under section 6(1) of the Government of India Act, 1 935 (as adapted) it was of paramount constitutional importance in its application to the former State of Bahawalpur and its territories. It had to be read into the Government of India Act for these purposes as a part of its Constitution. This constitutional document was kept alive and continued in force as before in spite of the successive changes in the Constitution of the country. It was, therefore, argued before us that the Merger Agreement, as a document of constitutional importance, was above the ordinary law of the land and its provisions could not be modified, altered and rescinded by the President's Order No. 12 of 1961 or any other ordinary sub- constitutional legislation. This was indeed the main plank of the arguments addressed before us by the learned counsel for the petitioner.
33. In this connection there is no doubt that initially. The Merger Agreement when it was executed between ~ the late Ameer of Bahawalpur and the Governor-General of Pakistan on the 17th of December, 1954, was super-added by and had the immediate support and direct backing of section 6 of the Government of India Act itself. Even afterwards under Article 202(3) of 1956- Constitution it was expressly ordained that in exercising the legislative powers and executive authority of the Federation or a Province, due regard shall be had to the guarantees and assurances given under an agreement with respect to the personal rights, privileges and dignities of the Ruler of any acceding State with Pakistan. These constitutional safeguards were inviolable.
However, 1956-Constitution was abrogated With the proclamation of Martial Law in the country on the 7th of October, 1958. In spite of this, the Republic of Pakistan was continued to be governed as nearly as may be in accordance with the late Constitution, subject to any Order of the President or Regulation made by the Chief Martial Law Administrator. It was in exercise of those powers that the President's Order No. 12 of 1961 was promulgated on the 21st of August, 1961 G But afterwards even this qualified support under the Constitution to the Merger Agreement was not extended by virtue of the 1962-Cortsstitution. In this Constitution itself there was no express provision corresponding to section 6 of the Government of India Act and Article 202(3) of 1956-Constitution directly in support of the safeguards for the guarantees and the assurances contained in such- agreements. In this manner the umbrella of the Constitution and its backing and support to the Merger Agreement was altogether withdrawn and was no longer available with the promulgation of 1962-Constitution..
It did not by itself provide any constitutional safeguard to the guarantees and assurances contained in the Agreement. There is no doubt that the Merger Agreement, without this additional constitutional backing, continued to remain in force but merely as a legal instrument and not as a constitutional instrument under Article 225(1) and (7) of 1962-Constitution. It was thus relegated to the position of and became an ordinary existing law short of the Constitution itself. In these circumstances it cannot, therefore, be held that a Legislature, which is ordinarily competent to legislate in this matter, was precluded from making any law overriding the provisions of the Merger Agreement in question or that its power to make laws under the Constitution were curtailed and controlled by the provisions contained in the Merger Agreement.
34. The learned counsel for the petitioner laid great stress before' us that the Government must be held bound by the solemn assurances and guarantees given in the Merger Agreement. In this connection we cannot do better than express the feelings entertained by the Federal Court in Thakur Jagannath Baksh Singh v. United Provinces (AIR 1943 FC 29). Under more or less similar circumstances the Court expressed 'the hope that no. Responsible Legislature or Government would ever treat as of no account solemn pledges given by their predecessors. In that case the appellant was a talukdar of standing under a grant from the Crown. But most of those rights enjoyed by the talukdar were cut down after the United Provinces Tenancy Act, 1939 was passed by the Provincial Legislature. The talukdar, therefore, filed a suit challenging the vies of the Act. The matter went up to the Federal Court of India and it was contended that no Legislature in India had any right to alter any ,arrangement embodied in his sanad. But this contention was repelled. In this connection the Court observed : "We desire;, however, to point out that what they are now claiming is that no Legislature in India has any right to alter the arrangements embodied in their sanads nearly a century ago; and, for all we know, they would deny the right of Parliament itself to do so. We hope that no responsible Legislature or Government would ever treat as of no account solemn pledges given by their predecessors; but the re-adjustment of rights and duties is an inevitable process, and one of the functions of the Legislature in a modern State is to effect that re-adjustment, where circumstances have made it necessary, with justice to all concerned. It is, however, not r for this Court to pronounce upon the wisdom or the justice, in the broader sense, of Legislative Acts; it can only say whether they were validly enacted, and in the present case we are satisfied that neither the U. P.
Tenancy Act, 1939 as a whole, nor any of those provisions of it which are set out in the schedule to the plaint, are open to challenge on any of the grounds which have been argued before us."
"It has not been possible for the appellant to adduce any authority for the principle involved, which their Lordships apprehend to be that Parliament, whether Imperial, Federal or Provincial, in the absence of express prohibition, is debarred from legislating so as to vary the effect of a Crown grant."
Although this case is distinguishable on facts but these observations are quite apt and to the point.
A Legislature in the absence of express prohibition .In the Constitution itself, is not debarred from legislating so-as to vary the effect of a sanad or a Crown grant.
35. In a reported case under the Indian Jurisdiction in the State of Bihar v. Sir Kameshwar Singh (AIR 1952 SC 252 (312)) the taluqdars of oudh contended that they were absolute owners of their holdings at the time of the annexation of Oudh in February 1856, that subsequently the British Government under the directions of, Lord Dalhousie tried to take away the taluqdars' rights, but that after the mutiny they were re-instated in their earlier status and that status was reaffirmed by the enactment of the Oudh Estates Act I of 1856, that the permanent and hereditary rights of the appellants under that Act in the lands granted to them under the sanads could not be affected by any legislation made by the successors in interest of the British Government and that Government could not derogate from its grant. But these contentions were repelled by the Supreme Court of India which observed : "The Crown cannot deprive % legislature of its legislative authority by the mere fact that in the exercise of its prerogative it makes a grant of land within the territory over which such legislative authority exists and no Court can annul the enactment of a legislative body acting within the legitimate scope of its sovereign competence. If therefore it be found that the subject-matter of a Crown grant is within the competence of a provincial Legislature, nothing can prevent that Legislature from legislating about it, unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or conditionally."
' "But unless and until the Court came to the conclusion that the Constitution itself had expressly prohibited legislation on the subject either absolutely or conditionally the power of the State Legislature to enact legislation within its legislative competence was plenary."
1n laying further emphasis on this, the Court remarked that if there was no such letter or limitation to be found in the Constitution itself the State legislature had full competence to enact the impugned Act no matter whether such enactment was contrary to the . Guarantee given, or the obligation undertaken by the Government.
36. In this connection the learned Attorney-General has also raised another objection. He contended that this dispute for the specific enforcement of the assurances and guarantees contained in the Instrument of Accession or the Merger Agreement in question was not justiciable.
In this connection he submitted that the execution of the agreements between the two sovereign States by the late Ameer as the Ruler of Bahawalpur State and the Governor-General as executive head for Pakistan, amounted to the negotiation of a treaty governing the relationship with a foreign power. It was an act of State and the jurisdiction of the municipal Courts in this country was barred from entertaining any dispute arising out of it. But the learned counsel for the petitioner repelled the contention and the issue was argued before us at length on both sides.
37 In Halsbury's Laws of England (Third Edition), Volume VII, para. 593 an "act of State" is defined to mean an act of the executive as a matter of policy performed in the course of its relations with another State including its relations with the subjects of that State, unless they are temporarily within the allegiance of the Crown. It is stated in para. 595 that no control can be exercised by municipal courts in the matter. In this connection it is laid down that an "act of state" is essentially an exercise of sovereign power, and hence cannot be challenged, controlled, or interfered with by municipal Courts. Its sanction is not that of law, but that of sovereign power and, whatever it be municipal Courts must accept it, as it is, without question. In fact, the true view of an act of State is that it is a catastrophic change, constituting a new departure. HaIsbury, in para. 597 has recorded some typical examples of acts of State, such as the making and performance of treaties, the seizure or annexation of land or goods in right of conquest, or the declaration of war, or of blocade.
In para. 604 it is laid down that the subject of treaties is governed partly by international and partly by municipal law. International law regulates the relations of the sovereign or part-sovereign states inter se, and so, according to the view of English law, determines the validity, the interpretation, and the endorsement of treaties as between the parties ) Municipal law determines the attribution of the treaty-making power within the state and the effects of treaties upon persons within its allegiance. The negotiations leading up to and the conclusion of treaties are matters of diplomatic practice. In elaborating . On the treaty making power, under para. 605, it is mentioned that according to international law, States which are fully sovereign possess unlimited power to conclude treaties. But States which are partly sovereign may make treaties only in so far as they are within their competence. According to the "Introduction of International Law" by J. G. Starke (Fourth Edition), Chapter 7, on page 134, there are five generally recognized modes of acquiring a territorial sovereignty. They are by occupation, annexation, accretion, prescription and cession. In this connection, the learned author has further observed on page 139 that cession is an important method of acquiring territorial sovereignty. It rests on the principle that the right of transferring its territory is a fundamental attribute of sovereignty of a State. The cession of a territory may be voluntary, or it may be under compulsion as a result of war conducted successfully by the State to which the territory is acceded. Any transaction (such as a gift, sale or exchange) will be valid as a cession which sufficiently indicates an intention to transfer sovereignty from one State to another and an acceding State cannot derogate from its own grant. The same learned author has on page 280 defined "Treaty" as an agreement whereby two or more States establish or seek to establish a relationship under international law between themselves. The object of a treaty is to impose obligations on States who are parties to it. Similarly in the "Manual of Public International Law" edited. By Max Sorensen on page 323, it is stated that the most important mode of acquisition of territory by derivative titles is cession. Cession may be defined as the transfer from one State to another of sovereignty over a definite territory. It may take place by peaceful means such as purchase, sale or exchange, or as a consequence of war by means of treaty or by means of other kinds of pressure. Cession takes place at the time when authority is effectively transferred to the cessionary State, which assumes all international rights and obligations attaching to the territory.
The execution of an instrument of accession or a Merger Agreement between two sovereign States by the negotiation of a treaty between them amounts to an act of State.
38. The learned Attorney-General has strongly relied on some of the reported cases cited before us in support of the contentions that the municipal Courts have no jurisdiction to enquire into acts of State. In the Secretary of State for India v. K. B. Sahaba ((1859) 15 E R 9) the facts sere that Ameer Singh, a former Rajah of Tanjore, was in the year 1787 absolute sovereign of the fort and country of Tanjore, in the Presidency of Madras. In that and subsequent years, he entered into three treaties with the East India Company seeking its protection. He died without leaving any male issue, when the East India Company, in exercise of their sovereign power, and in trust for the British Government, seized the Raj of Tanjore and the whole of the territory of the deceased Rajah, as an escheat, on the ground that the dignity of the Raj was extinguished for want of a male heir and that the property of the late Rajah lapsed to the British Government. The respondent brought a suit in the trial Court, as the eldest widow of the late Rajah of Tanjore on the ground that she was entitled to inherit and possess, as his heir and legal representative, his private and particular estate and effects real and personal left by him at the time of his death. The suit was ultimately decreed by the Supreme Court of Judicature at Madras. But on appeal, their Lordships of the Privy Council reversed the decree and dismissed the suit on the ground that the municipal Courts of the country had no jurisdiction to entertain the suit. In this connection, the Privy Council held : "---------.That the East India Company, as trustees for the Crown, and under certain restrictions, are empowered to act as a Sovereign State in transaction with other Sovereign States in India; that the Rajah of Tanjore was an independent Sovereign in India; that on his death in the year 1855, the East India Company, in the exercise of their Sovereign power, thought fit, from motives of State, Lo seize the Raj of Tanjore and the whole of the-property the subject of this suit, and did seize it accordingly; and that over an act so done, whether rightfully or wrongfully, no Municipal Court has any jurisdiction.
The general principle of law was not, as indeed it could not; with any colour of reason be disputed.
The transactions of independent States between each other are governed by other laws than those which Municipal Courts administer : such Courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make."
39. In the case of Cook and another v. Sir James Gordon Sprigg (1899 A C 572) the appellants claimed certain concessions and other rights in Eastern Pondoland granted to them by Sigeau, paramount chief of Pondoland between the years 1889 to 1893. But the respondent contested the claim and alleged that at the relevant time the British Government was the sole paramount authority in Pondoland and that without the consent of the said Government the said concessions in favour of the appellants had no legal force and effect. It appears that Pondoland was annexed to Cape Colony by Act V of 1894, passed in consequence of Sigcau's deed of cession dated 17th May, 1894. The respondent, in his capacity as the Prime Minister of the Colony, became by virtue of this cession and of the Cape Colony Act V of 1894, clothed with all the rights and all the obligations attaching to or binding upon Sigca as such paramount chief. In that case the House of Lords found that there was a complete answer to the claim set up by the appellants and held that : "The taking possession by Her Majesty, whether by cession or by any other means by which sovereignty can be acquired, was an act of State and treating Sigcau as an independent sovereign-which the appellants are compelled to do in deriving title from him. It is a well- established principle of law that the transactions of independent States between each other are governed by other laws than those which .Municipal Courts administer.
It is no answer to say that by the ordinary principles of international law private property is respected by the sovereign which accepts the cession and assumes the duties and legal obligations of the former sovereign with respect to such private property within the ceded territory.
All that can be properly meant by such a proposition is that according to the well-understood rules of international law a change of sovereignty by cession ought not to affect private property, but no municipal tribunal has authority to enforce such an obligation. And if there is either an express or a well-understood bargain between the ceding potentate and the Government to which the cession is made that private property shall be respected, that is only a bargain which can be enforced by sovereign against sovereign in the ordinary course of diplomatic pressure."
40. In another case of vajesingji Joravarsingi and others v. Secretary of State for India in Council ((1924) 51 1 A 357), the lands in question were situated in the Panch Mahals and, previously to 1860, were in the domain of Scindia of Gwalior. On December 12 of that year Scindia ceded this territory to the British Government by a treaty, and the Maharaja transferred to the British Government in full sovereignty of the whole of his possession in the Panch Mahals. But the plaintiff-appellants claimed proprietary rights in the lands under a Sanad obtained from the Ruler before cession of the territories to the British. In these circumstances Lord Dunedin after examining some of the leading authorities in summing up the legal position observed that : "When a territory is acquired by a Sovereign State, it matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognized ruler. In all cases the result is the same.
Any inhabitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognized. Such rights as he had under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the high contracting parties."
41. Similarly in the case of the Secretary of State v. Sardar Rustam Khan and others (AIR 1941PC64), the facts were that by an agreement in 1903 between the Khan of Kalat and the Agent to the Governor-General in Baluchistan, the Khan of Kalat granted to the British Government a perpetual lease of the Nasirabad Niabat, a part of the Kalat territory, at a quit rent and ceded, in perpetuity the entire management of the Nasirabad Niabat absolutely and with all the rights and privileges, State or personal, as well as full and exclusive revenue, civil and criminal jurisdiction and all other forms of administration. Over part of the land comprised in the agreement the predecessors of the plaintiffs held proprietorial rights granted to them p-for to 1903 by the then Khan of Kalat and the grants continued to be of full force up to the date of the agreement. After 1903 the Government of India made a settlement of the territory and recorded certain lands including those comprised in the grant to the predecessors of the plaintiffs as Government unoccupied lands. The plaintiffs brought a suit claiming that as the lands in suit were comprised in their grant from the Khan of Kalat the Government had no title to them and could not. Treat them as Government unoccupied lands. On these facts, their Lordships of the Privy Council held that the agreement crated rights between two sovereign States. The British Government were to exercise the rights and privileges ceded to them in as ample a manner as if acquired by conquest or cession by virtue of S. 1, Foreign Jurisdiction Act. The agreement gave the British Government full sovereign rights over the territory and they had a right to recognize or not to recognize the existing titles to land. The act of the British Government in not recognizing the title of the plaintiffs to the suit lands was an act of State for which the plaintiffs could have no recourse against the Government in Municipal Courts.
42. In another case from the West African Court of Appeal in Adeyinka Oyekan v. Musendiku Adele-( PLD1958PC8) the facts were that Docemo, King of Lagos (West Africa), made a Treaty of Cession in 1861 with Britain whereby the territory of Lagos passed to the British Crown. In 1870 the Crown made a grant of the Iga, the Official residence of the King-to Docemo. On disputes arising in 1949 between the family of Docemo and the newly-elected Oba (King) in regard to occupation of the Iga, the family of Docem3 brought an action claiming title to the lga on the basis of the Treaty and grant aforementioned. The action was dismissed by the Supreme Court of Nigeria and on further appeal, the Privy Council held that: "the Treaty of Cession was an Act of State by which the British Crown acquired fill rights of sovereignty over Lagos. In these circumstances the Courts of Law will not take it upon themselves to construe the Treaty. The effect of the Act of State is to give to the British Crown sovereign power to make laws and to enforce them, and therefore, the power to recognize existing rights or extinguish them or to create new ones. In order to ascertain what rights pass to the Crown or are retained by the inhabitants, the Courts of Law look, not to the Treaty, but to the conduct of the British Crown. It has been laid down by their Lordships' Board that `any inhabitant of the territory can make good in the Municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of his predecessors avail him nothing.' See Vajesingf foravarsingi v. Secretary of State for India (1924 L R 51 1 A 360) by Lord Dunedin, Heani Te Heuheu Tukino v. Aotea District Moari Land Board (1941 A C 308). In inquiring, however, what rights are recognised there is one guiding principle. It is this: The Courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected."
43. Coming nearer home we have before us the case of Crown v. Muhammad Shah and another (PLD 1954 Bal. 57), decided by then Court of the Judicial Commissioner, Baluchistan. The facts in that case were that Muhammad Shah and Malook-the accused-respondents, were found to be in possession of certain quantity of charas in alleged contravention of a Notification issued in 1949 which totally prohibited the possession of charas by any person. The learned Magistrate without entering into the merits of the case, acquitted both the respondents on the grounds that the Notification was ultra vires of the powers of the Chief Commissioner in Baluchistan. It appears .That in accordance with a treaty engagement entered into by His Majesty's Government with the former Khan of Kalat in 1883, the Ruler of Kalat had leased out absolutely to the British Government certain areas which are known as the Leased Areas, and the Quetta City and its environments where the alleged offence took place, form. Part of the Leased Areas. Upon the attainment of independence by Pakistan and in accordance with section 7 of the Independence Act all treaties and engagements between His Majesty's Government and the Indian States lapsed. It was left to the new Dominions of India and Pakistan and to the State concerned, to enter into fresh agreements for their accession to one or the other of the new Dominions. Accordingly, the Ruler of Kalat signed an Instrument of Accession with the Pakistan Government in March 1948.
A question was raised at the hearing in the appeal before the Judicial Commissioner as to whether or not the Federation of Pakistan could exercise jurisdiction over the Leased Area or whether by virtue of the Instrument of Accession or for any other reason; jurisdiction formerly exercised by the Britsh Government should b.- considered as having lapsed and was restored to the Ruler of Kalat.
In that connection the. Learned counsel for the respondents in that case argued that since the treaty engagement with the British Government had lapsed, it followed that jurisdiction over the Leased Areas returned to the Ruler of Kalat. But the learned Advocate-General contended that by virtue of the Leased Areas (Laws) Order, 1950, the Governor-General assumed jurisdiction by continuing to ~ apply the previous laws and regulations which were in force in these areas. On the basis of this Order it was contended that jurisdiction by the Federation of Pakistan had been assumed and that all previous laws, Notifications, etc., in force must be considered to be in force.
The essence of this aspect of the case argued before the learned Judicial Commissioner was whether the Leased Areas (Laws) Order, 1950 was itself ultra vires or not.
" . . . , I must conclude that the Federation of Pakistan have assumed jurisdiction over the Leased Areas. Even if the manner in which jurisdiction has been assumed were open to question, though 1 have no reason to believe it to be improper, I am satisfied that no Municipal Court, as opposed to an international Court, can challenge the right of a sovereign State to acquire jurisdiction. It is now a matter of history that on the attainment of independence the Federation of Pakistan assumed jurisdiction over Leased Areas from the date of independence. Whether this was de facto or de jure assumption of jurisdiction appears to be immaterial. This process was, however, sought to be legalised by various Orders issued by the Governor-General, some of which have been referred to in this judgment. The act of acquiring or assuming jurisdiction must be considered as an act of State and as such is beyond the competency of any Municipal Court to question."
44. Under the common law of England this principle is well settled that a Treaty arrived at between two sovereigns amount to an act of State and that such a transaction is not controlled and governed by the ordinary laws of the land administered by the domestic Courts of the country.
They have no authority to enforce the obligations arising from a treaty which is an act of State.
Before us the learned counsel for the petitioner did not question this common law principle. He, however, added that the best statement on this topic of an act of State is contained in the case of Salaman v. Secretary of State for India (AIR 1941 P C 64), as under : "An act of State is essentially an exercise of sovereign power, and hence cannot be challenged, 'controlled, or interfered with by municipal Courts. Its sanction is not that of law, but that of sovereign power, and, whatever it be, municipal Courts must accept it, as it is, without question. But it may, and often must, be part of their duty to take cognizance of it. I-or instance, if an act is relied upon as being an act of State, and as thus affording an answer to claims made by a subject, the Courts must decide whether it was in truth an act of State, and what was its nature and extent. An example of this is to be found in the case of Forester v. Secretary of State for India in Council 11872) L R. Ind. Ap. Supp.
10. But in such an inquiry the Court must confine itself to ascertaining what the act of State in fact was, and not what in its opinion it ought to have been. In like manner municipal Courts may have to consider the results of acts of State, i.e., their effects on the rights of individuals, and even of the Government itself. Acts of State are not all of one kind; their nature and consequences may differ in an infinite variety of ways, and these differences may profoundly affect the position of municipal Courts with regard to them. For instance, an act of State may fix the relations between two States, each of which continues to possess an independent existence. The consequences of such an act of State are entirely beyond the cognizance of municipal Courts, because they do not administer treaty obligations between independent States. An example of such an act of State may be found in the case of Nabob of Carnatic v. East India Co. (1973) 2 Ves.
56. But the object and effect of an act of State are not necessarily of this kind. Its intention and effect may be to modify and create rights as between the Government and individuals, who are, or who are about to become, subjects of the Government. In such cases the rights accruing therefrom may have to be adjudicated upon by municipal Courts. Let me take a simple example. Let us suppose that a Government by an act of State annexes a neighbouring country, and formally takes over all the property and liabilities of the former ruler, and that a pact of such property consists of debts due to him. 'h he Government is not compelled to collect such debts viet armis; it may avail itself of the assistance of its Courts of law for the purpose, in the same way as though the debts had accrued due to it otherwise than by an act of State. But in deciding on such a claim the Courts must loyally accept the act of State as effective. Evidence that the debt was due tai the former ruler would thereby become evidence of its being due to the existing Government; and I see no reason why in such a case a claim of a converse character might not equally be entertained by municipal Courts, and a subject recover from the existing Government by the processes of law applicable to such a case any debts due from the former ruler. The judgments in the case of Frith v.
Reg., (1872) L. R. 7 Ex. 365, seem to me to give support to this view.
"The true view of an act of State appears to me to be that it is a catastrophic change, constituting a new departure. Municipal law has nothing to do with the act of change by which this new departure is effected. .Its duty simply to accept the new departure; and its power and its duty to adjudicate upon, and enforce rights of individuals, or of the Government, in the future, appear to me to be precisely the same whether the origin of such rights be an act of State or not."
45. On this view, the municipal Courts in this country are bound to accept the Instrument of Accession or the Merger Agreement executed between the late Ameer of Bahawalpur and the then Governor-General of Pakistan as an accomplished fact. They cannot go behind the instrument and challenge its validity. But this does not debar these Courts to look into the effect of the instrument on the, rights of the main contesting parties before us, who are citizens or Pakistan, in relation to a cause of action which for the first time accrued to them long afterwards on the death of the late Ameer on the 24th of May, 1966.
46. In this connection the learned counsel for the petitioner distinguished the authorities discussed above by saying that they were all based on the concept of act of State which is merely a prerogrative of the Crown in England. 1n this connection the learned counsel relied on Halsbury's Laws of England (Third Edition), Volume VII, page 593 which shows that such acts of State are done by virtue of the prerogatives of the Crown. But according to the learned counsel in this country under our republican constitution there are no prerogative powers. The Courts in this country are bound by our own constitution and the laws in force here. The Merger Agreement in question was an Instrument of Accession executed by the late Ameer of Babawalpur and accepted by the Governor-General of Pakistan, in accordance with section 6 of the Government of India Act, 1935. In this connection the proviso to subsection (4) of section 6 of the Act laid down that if any Instrument has in fact been accepted by the Governor-General, the validity of that Instrument or of any of its provisions shall not be called in question and the provisions of this Act shall, in relation to the State, have effect subject to the provisions of the Instrument. Under subsection (9) of this section all Courts are bound to take judicial notice of every such instrument. The validity of the instrument or any of its provisions cannot be called in question in any Court. But this bar of jurisdiction is restricted to any attack against the validity of the Instrument or any of its provisions. It does not work in any other direction and debar the Court from enforcing the agreement . Or any of its provisions between the citizens of Pakistan. In fact this proviso itself expressly lays down that the provisions of the Act shall have to effect subject to the provisions of the Instrument.
47. In this connection our attention was also drawn towards the two reported cases decided by the Supreme Court of India, Maharaj Umeg Singh and others v. State of Bombay and others (AIR 1955 SC 540) and Sudhansusekhar Singh and others v. The State of Orissa and another (A I R1961 SC 193). In the first case of Maharaj Umeg Singh and others the petitioners challenged the vires of the Bombay Merged Teritories and Areas (J'agirs Abolition) Act, 1953 mainly relying upon the agreements of merger entered into by the Rulers of the respective States with the Dominion of India and the collateral letters of guarantee passed by the Ministry of States in their favour. It was observed that the whole of the petitions filed by the petitioners under Article 32 of the Constitution of India were nothing else except the claim to enforce their rights under the letters of guarantee.
The dispute was clearly in respect of the agreements of merger and letters of guarantees covered by Article 363 (I) of the Constitution and hence tad jurisdiction of the Court was barred to entertain the dispute. Article 362 of the Indian Constitution lays down that in exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any covenant or agreement given by the Ruler of any Indian State with the Dominion of India. But in this connection Article 363 further lays down that neither the Supreme Court nor any other Court shall have any jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant executed before the commencement of the Constitution by any Ruler of an Indian State to which the Government of India was party. In the light of these provisions the Supreme Court of India in the other case of Sudhansusekhar Singh and others similarly held that the claim of the ex-ruler in seeking to enforce the merger agreement against the revenue authorities was hit by the mischief of Article 363 of the Constitution. But both these cases are easily distinguishable because there was no provision in our Constitution corresponding to Article 363 of the Indian Constitution. The only bar applicable to this case was contained in the Proviso to section 6(4) of the Government of India Act, 1935 (as adapted). It merely provided that the validity of an Instrument of Accession or of any of its provisions shall not be called in question. Short of that there was no bar against any Court from entertaining any dispute for the enforcement of the Instrument of Accession or any of the guarantees, assurances and stipulations contained therein. Indeed in this connection it was expressly laid down that the provisions of the Act shall have effect subject to the provisions of the Instrument. For all these reasons this objection raised by the learned Attorney-General is not tenable and we find that the jurisdiction of this Court is not barred to entertain this dispute.
48. In the course of the arguments addressed before us the learned counsel for the petitioner, at times barely referred to the pronouncement of the Supreme Court of Pakistan in Miss Asma Jilani v.
Government of Punjab and another (PLD 1972 SC 139) and contended that State v. Dosso (PLD 1958 SC 533) was expressly overruled and that the doctrine laid down in that 'case was no longer good law. From this the learned counsel wanted us to conclude that President's Order No. 12 of 1961 was also made by a usurper and was invalid. But we are unable to agree with this conclusion.
There is no, doubt that in the case of Miss Asma Jilani the Supreme Court authoritatively and expressly dissented from the doctrine propounded in Dosso's case. The Supreme Court also held that the military rule sought to be imposed upon the country by General Agha Muhammad Yahya Khan on and from the 24th of March, 1969, was entirely illegal. But at the same time the Court recognised and gave full effect to the late Constitution of Islamic Republic of Pakistan, 1962. In that connection the Chief Justice of Pakistan observed that : "The Courts in the country also gave full effect to this Constitution and adjudicated upon the rights and duties of citizens in accordance with the terms thereof by recognizing this law constitutive medium as a competent authority to exercise that function as also enforced the laws created by that medium in a number of cases. (Vide Mr. Fazlul Qadir Chowdhury and others v. Mr. Muhammad Abdul HaqueP L D 1963 SC 486, Syed Abul A'ala Maudoodi and another v. The Government of West Pakistan and another-PLD 1964 SC 673, The Government of East Pakistan v. Mrs. Roshan Bijoy Shaukat A.I KhanP L D 1966 SC 286, Malik Ghulam Jilani v. The Government of West Pakistan and another -PLD 1967 SC 373 and The Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmir!--PLD 1969 SC 14).
"Thus even according to the arguments advanced by the learned counsel appearing for the appellants all the laws made and acts done by the various Governments, Civil and Military, became lawful and valid by reason of the recognition given to them by the new Constitution and the Courts. They have not only de facto validity but also acquired de jure validity by reason of the unquestioned recognition extended to them by the Courts of highest jurisdiction in the country. The validity of the acts done thereunder are no longer, therefore, open to challenge, even under the concept of law propounded by the realist school of jurists and adopted by the learned counsel for the appellants."
Therefore, by virtue of Article 225(1) and (2) of the 1962-Constitution, the President's Order No. 12 of 1961, was continued in force as an existing law framed b a competent legislature and this contention is repelled.
48-A. Let us now examine the effect of the Acceding State (Property) Order, 1961, (President's Order No. 120 of 1961) on the Bahawalpur Merger Agreement dated the 17th of December, 1954, in question, executed between the late Ameer of Bahawalpur and the then Governor-General of Pakistan. It was promulgated on the 2nd of September, 1961, by the President in pursuance to the powers vested in him under the Proclamation of Martial Law. It came into force at once. But it was laid down in Article 1(2) that an order made in pursuance to it may be given retrospective effect not earlier than the 15th of August, 1947. Article 2 further lays down that in this Order references to a State shall be construed as references to a State which has at any time after the 14th day of August, 1947, been in accession with Pakistan. Its Article 3 is the most important provision in this order. It lays down that where any question arises directly or indirectly between persons claiming to be the heirs and successors of the Ruler of a State or claiming to succeed to the State, concerning the devolution and distribution of any property of that State or of the Ruler, the question shall be decided by an order of the Central Government. In this connection Article 7 of the order further lays down that no Court shall have jurisdiction to entertain any such question as is referred to in Article 3, and no Court shall call in question any order of the Central Government made under that Article or Article 5 or any proceedings connected therewith.
49. In this connection the learned counsel for the petitioner attempted to argue before us that on a literal interpretation of Article 2 this Order was applicable to a State in accession with Pakistan in the recent past only. But we are unable to accept this contention. This Article is applicable, to a State which has "at any time after 14-8-1947" been in accession within Pakistan. These words unequivocally go to show that the accession oft the State could have been at any time after 14-8- 1947, and not necessarily in the recent past only. As stated above Article 3 of this Order merely lays down that where any question arises directly or indirectly between persons claiming to be the heirs and successors of the Ruler of a State or claiming to succeed to the State concerning the devolution and distribution of any property of that State or of the Ruler the question shall be decided by an order of the Central Government. This merely provides a forum for the settlement of a dispute between the rival claimants to the succession to an acceding State or its ruler concerning the devolution and distribution of their properties. Evidently the idea behind this provision was to safeguard the dignity of the Rulers of the acceding States, and not to drag them to the ordinary Courts in the country. The Central Government was vested with the exclusive jurisdiction for the settlement of these questions. But the learned counsel for the petitioner contended before us that in this manner uncontrolled and unguided powers without providing for any norms, were illegally vested in the Government under this Order. However, on a careful consideration, we are not inclined to accept his contention in this behalf. This Article has simply provided a forum vested with the exclusive jurisdiction for the settlement of these disputes in question. But this Order does not repeal the substantive law that may be applicable to these disputes P of the kind. They are disputes of a civil nature touching important rights of the parties thereto. The Central Government in deciding these dispute must act judicially as a quasi judicial tribunal or a sole arbitrator constituted for their settlement.
The provisions of the Order nowhere authorise the Government to act capriciously and arbitrarily in their decision. The Central Government is not absolved from administering the substantive law applicable to the parties to the dispute before it.
50. We find that these provisions of the President's Order No. 12 of 1961 are not at all in conflict with and they do not in any way override the Merger Agreement in question. The different clauses of the Agreement have been reproduced above in extenso in para. 24 of this judgment. Under Article'1 His Highness the late Ameer of Bahawalpur agreed to accede to the Government of that Dominion of Pakistan his sovereignty along with his territories,- authority, jurisdiction and powers for the governance of the State in favour of the Dominion of Pakistan. Article 11 lays down that His Highness the Ameer shall be entitled to receive annually Rs. 32 lacs as privy purse free of Income-tax.
According to Article III it was agreed that His Highness shall be entitled to full ownership, use and enjoyment of all the jewels, jewellery , ornaments, securities and other private properties, movable as well as immovable, not being State properties, belonging to him on the date of the agreement.
Article IV lays down that His Highness the Ameer, Her Highness the Begum and their children shall be entitled to all the personal privileges, dignities and titles enjoyed-by them immediately before the date of the agreement. By Article V the Government of Pakistan guaranteed the succession according to the law and custom of the State of Bahawalpur to the personal rights, privileges, dignities and titles of His Highness as specified in Articles II to IV above. The Merger Agreement does not expressly specify any forum for the settlement of any dispute arising out of it. A provision in this behalf was made in the President's Order No. 12 of 1961. The provisions of the President's Order No. 12 of 1961 do not override any of the provisions of the Merger Agreement and two are complementary to each other. Indeed, on this view of the matter, most of the above contentions advanced before us based on the supposition that provisions of President's Order No. 12 of 1961 have an overriding effect against the Merger Agreement, were besides the point.
52. The learned Attorney-General has also relied on Article 7 of the Order to contend that the jurisdiction of this Court is expressly barred to entertain this dispute. It lays down that no Court shall have jurisdiction to entertain any such question as is referred to in Article 3, and no Court shall call m question any order of the Central Government made under that Article or Article 5 or any proceedings connected therewith. There is no doubt that the exclusive jurisdiction for the decision of any question as is referred to in Article 3 of the Order is vested in the Central Government and that no Court is competent to entertain any such question. There is a further bar to the jurisdiction of the Courts and no Court shall call in question any order passed by the Central Government "made under Article 3 of the Order. This protection is extended to an order passed by the Central Government which was made by it strictly in accordance with and under this Article and not otherwise. It does not extend to any order passed by the Central Government, which cannot be properly brought within the four corners of this Article and was in reality made in excess of the powers thus conferred on it. In the reported case of Khair Muhammad Khan v. State (PLD1966SC604) the Supreme Court of Pakistan considered a similar plea of the ouster of the jurisdiction of the High Court under Article 98 of the late Constitution of 1962 in the light of the provisions contained in para. 27 of the Martial Law Regulation No. 64. According to this para. No provision of this Regulation or any rules or "order made thereunder" shall be called in question in any Court including the High Court and the Supreme Court. In construing this bar of jurisdiction contained in para. 27 of the Regulation the Supreme Court held that :- "As a result of the above discussion, we are satisfied that the order of Mr. 1. U. Khan is not one that can be made within the powers given by the Regulation. By paragraph 27 of that Regulation, it is provided that no order made thereunder shall be called in question in any Court including the High Court and the Supreme Court. The words are not "any order purporting to be made", but "any order made" and therefore the requirement is that any order in respect of which immunity may be claimed under paragraph 27 must be an order made in accordance with the Regulation in its relevant provisions."
53. The High Court is, therefore, not debarred from finding under Article 98 of the Constitution if the impugned Order in this case was passed by the Central Government without lawful authority or against law. In this connection it is necessary to recapitulate here some of the relevant facts. After the demise of the late Ameer of Bahawalpur on 24-5-1966, dispute;, and differences arose between the petitioner and respondents Nos.-2 to 23, claiming to- be his heirs, concerning the devolution and distribution of the private properties belonging to him. Some of the respondents sought the intervention of the Central Government for the settlement of the dispute between them. The Central Government, therefore, took cognizance of the dispute with a view to resolve it in accordance with Article 3 of the President's Order No. 12, of 1961. In this connection as it appears from a copy of a letter No: 157 dated the 23rd of June, 1967, from the Secretary, West Pakistan Land Commission, Lahore, addressed to the Principal Secretary to His Highness the Ameer of Bahawalpur the President's Secretariat Government of Pakistan (States and Frontier Regions Division) appointed Mr. Abu Nasar, C. S. P. And Mr. S. M. Elahi, C. S. P., Members, Board of Revenue, West Pakistan, Lahore to conduct an enquiry on the question .Of the devolution/distribution of the private (personal) properties of the late Ameer of Bahawalpur. On receipt of this letter, the petitioner made a representation to the President of Pakistan against holding any such enquiry and claimed exclusive succession to the properties left by the late Ameer of Babawalpur. But in reply the Section Officer to the Government of Pakistan States and Frontier Regions Division, Islamabad in his letter No. F 1/5/SI/SEC-VII/67-1, dated the l0th of July, 1967, addressed to the Principal Secretary to His Highness the Ameer of Bahawalpur informed .Him that the Government after examining the position did not agree to the claim of the petitioner to the exclusive title to the personal and private properties left by his father. In reply to this letter the Principal Secretary to the petitioner wrote yet another letter to respondent No.1 informing it that the petitioner was not satisfied with the correctness of this decision taken by the Government against him. He added that he was, however, reluctant to start a Court action straightway. He suggested that in view of the public importance of the interpretation of Article 3 of the Acceding States (Property) Order, 1961 (President's Order No. 12 of 1961) the matter may be referred to the Supreme Court for its authoritative opinion under Article 59 of the late Constitution of 1962. But the Central Government did not accept the suggestion and declined to refer the issue to the Supreme Court.
54. In these circumstances on the 1st of August, 1967 the two enquiry officers, constituted as a Commission of Enquiry, visited Bahawalpur to conduct an enquiry into this dispute. It appears that Lt.-Col. A. K. Khanzada, Principal Secretary of the petitioner appeared before the Commission and raised the following three preliminary objections which were later on incorporated in a letter dated the: 12th of August, 1968, addressed to respondent No. I :- "(i) It is common ground that on the demise of the late Ameer of Babawalpur the petitioner' succeeded to him as the Ruler of the former State of Bahawalpur according to the law and custom of the State and his succession was lawfully recognised by respondent No. 1. By virtue of the Government's recognition of His Highness the properties in dispute had automatically devolved on him.
(ii) That by Article V of the Merger Agreement the rule applicable to succession was the law and custom of Bahawalpur, according to which the whole property goes to the eldest son, and not the general law of inheritance, and
(iii) That certain persons to whom property had been gifted either by His late Highness, or by his ancestors and who were not claimants were entitled to notice of the inquiry because such property though gifted according to the law of Bahawalpur still stood in the name of the late Ameer of Bahawalpur and if treated as his such persons without being heard would be deprived of it."
But the Commission informed him that it would not entertain these objections as they were not within its terms of reference.
55. Eventually, on the 7th of January, 1969, respondent No. I informed the Controller of Properties of the petitioner to the effect that the Enquiry Commission had submitted a detailed report in the matter to the President who has approved of the recommendations made by the Commission and that a formal order shall be issued by the States and Frontier Regions Division in this connection. In these circumstances on the 19th of February, 1969, respondent No. I passed the impugned order in question:
56. On these facts the petitioner has raised certain serious objections against the constitution of the Commission and the validity of the proceedings leading to the impugned Order. - Under Article 3 of the President's Order 12 of 1961 the Central Government was vested, with the power to decide .
The dispute in question by an order. There is no provision in this Order for the Central Government to delegate its authority and constitute a Commission or appoint any enquiry officer for holding ans enquiry into the matter in dispute before it. According to Craise on Statute Law (Sixth Edition) at page 314-315, the power to sub-delegate must be expressly or impliedly authorised by the enabling Act: otherwise the well-known principle "delegalus non potest delegare" comes into operation. Even tinder the Code of Civil Procedure under section 75 read with the provisions contained in Order XXVI of the Code, Court may issue a Commission (a) to examine any person ; (b) to make a local investigation; (c) to examine or adjust accounts; or (d) to make a partition. In Padam Sen and another v. The State of Uttar Pradesh (AIR 1961 SC 218) the Supreme Court of India has laid down that there was no inherent power in a civil Court to appoint a commissioner. In .Sawan Mal and another v. Raunaq Mal and another (AIR 1922 Lah. 47) it was held that section 75 of the Code defines clearly the circumstances under which a commission may be issued. It did not authorise a Court to delegate to Commissioner .The trial of any material issue which it is bound to try. In this connection rule 9 of Order XXVI also lays down that in any suit in which the Court deems a local investigation to be requisite or ~ proper for the purpose of elucidating any matter in dispute, the Court . May appoint a Commission. But that does not authorise a Court to' T delegate to the Commissioner the trial of any material issue which it is] bound to try. 1n Sasanka Sekhar P.I and others v. Dinanath Gorain and! Others (4 1 R 1952 Pat. 271) it was held that under Order XXV1, rule 9 or under any -other provision of the Code of Civil Procedure, a Court cannot appoint a commissioner to discharge a judicial function. Also in Kershaji Dhanjibhal v. Kaikhushru Kolhablral and others (AIR 1929 Bom. 478) the Court observed that: "There are certain limited powers in the Civil Procedure Code, under which the Judge can delegate to the Commissioner or otherwise certain investigations but they do not include enquiries as to the heirs and the properties of the deceased in an administration suit." All that the Court can depute a Commission to do is to inspect a disputed land, to prepare a map or to obtain information with regard to physical features of the property inspected. It is not the intention of the Legislature to allow witnesses to be examined by the Commissioner unless the nature of their evidence is such that it ought to be taken on the spot.
These cases no doubt relate to the appointment oft Commission by Courts under the Code. But the nature of this jurisdiction in vested in the Central Government, if not purely judicial, was at least quasi judicial, and the dispute between the rival claimants was entirely of 2~ civil nature of considerable importance. In the circumstances it was required of the Government to have itself conducted the proceedings before it and to have brought to bear - its own mind to the dispute. We are, therefore, of the opinion that the Central Government, in the discharge of its functions under Article 3 of the President's Order 12 of 1961 could not entrust the entire enquiry to the Commission appointed by it for the purpose.
57. The report made by the Enquiry Commission was not produced before us. But it appears that the Central Government accepted the recommendations made by the Commission and passed the impugned Order called the Devolution and Distribution of Property (Ameer of Bahawalpur)
Order, 1969, accordingly. This Order passed by the Government does not give any reasons for the decision and is not a speaking order at all. Indeed in the circumstances of this case the impugned Order passed by the Central Government; which does not give any reasons whatever, can be said to be no order at all in the eye of law.. It does not inspire any confidence and from it one cannot with any amount of certainty vouchsafe that the Central Government had applied its own .Judicious mind to this dispute. The unfortunate impression gained from this Order is that it had surrendered its own discretion and judgment in the case in favour of the Commission of Enquiry appointed by it and almost mechanically it gave its final approval to the recommendations Made by the Commission in its report. .
58. Before us the learned counsel for the petitioner laid great stress that under Article V of the Merger Agreement dated the. 17th of December 1954, , reproduced above in extenso, the Government of Pakistan had guaranteed the succession according to "law .And customs of the State of Bahawalpur" to .The personal rights, privileges, dignities and titles of His Highness the Ameer of Bahawalpur, as specified in Articles II to IV. This relates back to the private properties, movable as well as immovable, not being the State properties belonging to the late Ameer of Bahawalpur on the date of the Merger Agreement. According to the learned counsel for the petitioner under the Customary Law the rule of primogeniture was applicable to this family and the State and by virtue thereof the petitioner succeeded to the Gaddi as a Ruler and the Ameerate. He maintained that these personal properties were attached to the Gaddi and as such he was entitled to succeed to them to the exclusion of the respondents Nos. 2 to 23 under the customary law. In support of his contention in this behalf the petitioner relied on his rejoinder to the counter-affidavit filed by respondent No. 3 to the effect that in the past the succession to the Ameerate and the property had invariably devolved in accordance with the rule of primogeniture under the customary law. The petitioner denied that the late Ameer -or any of his predecessors had ,either applied or accepted the Shariat Law in the matter of this succession. In this connection the petitioner also relied on the statement made by the late Ameer of Bahawalpur who was examined as a witness in suit No. 26 of 1,928 filed by the His Highness Sir.5adiq Muhaminad Abbasi against A.I Akbar Khan,' etc. Decided by the Court of Senior Sub-Judge on the 11th of March, 1930. In that case he deposed that the ruling chief was the sole reversioner to the exclusion of all others as the head of the family and the property reverts to him alone. This departure made from the general custom was due to the fact that the ruling chief of the State as head of the .Family was responsible for the protection, maintenance and support of all the widows of the Sahibzada. The grievance of the petitioner is that the Central Government has passed the impugned Order contrary to the customary law applicable to the parties in complete disregard of its own assurances and guarantees contained in the Merger Agreement. As already pointed out above .The impugned Order is not a speaking order and it does not disclose any basis on which this Order was passed.
However, respondent No. 1 in its written statement has alleged that: "The Ameer (petitioner) did claim that according to the law of primogeniture re was entitled to the entire property to the exclusion of the other heirs. But this position was not accepted by the Answering Respondent on the ground that the Customary Law, even if it had been prevailing in the Ruling family of Bahawalpur (without prejudice), had lost its application by section 2 of the West Pakistan Muslim Personal Law (Shariat) Act, 1962 and that the provisions of the Acceding State (Property) Order. 1961 prevailed for the distribution of the property left by the late Ameer of Bahawalpur."
59. Indeed by virtue of Article . V of the Merger Agreement the Government of Pakistan had merely guaranteed the succession according to the "law and customs of the Bahawalpur State". In our opinion it did not guarantee the application of the custom in preference to the other laws in force in the State. On a careful consideration we find that this stipulation only means that the succession shall be according to the rule of law in general. But this did not mean that this rule of law was immutable for all times and that Legislature competent to legislate in that matter could not pass any law modifying the law of succession in this behalf.
60. Under the impugned order the properties in dispute were distributed among the petitioner and respondents Nos. 2 to 23. The properties enumerated in the First Schedule were vested in the petitioner in his capacity as the Ameer and for so long as he was the Ameer. But he was not permitted to transfer these properties except with the previous approval of the Central Government. He was held responsible for discharging all debts and liabilities of the late Ameer of Bahawalpur from out of those properties. The remaining properties in dispute were divided between the petitioner and respondents Nos. 2 to 23 in severality as set out in detail in the Second Schedule. The parties were held liable for their share of the estate duty.
61. It was also contended before us that. At any rate neither the Commission constituted by respondent No. 1 nor the Central Government had allowed any reasonable opportunity to the petitioner to show cause against the impugned Order. In this connection it is admitted by the petitioner that, on the 1st of August 1969, when the Commission visited Bahawalpur to conduct the enquiry into this dispute, -Lt: Col. A."K. Khanzada, the Principal Secretary to His Highness the Ameer of Bahawalpur appeared before the Commission and raised certain preliminary legal Z objections.
But the Commission overruled all those objections on the ground that by the terms of : their reference they were not authorised to go into them. It is, therefore, evident that the petitioner. Ryas not at all, afforded any reasonable opportunity in this behalf at any stage of the case. The Central.
Government did not hear the petitioner before accepting the report submitted by the Commission of which he had no notice at all.
62. Under Article 3 of the Merger Agreement it was agreed that His Highness the Ameer shall be entitled to "the full ownership, use and enjoyment" of all his private properties, movable as well as immovable, not being the State properties, belonging to him. The Government of Pakistan also guaranteed that His Highness the Ameer, Her Highness and their children shall be entitled to all the "personal privileges, dignities and titles" enjoyed by them whether within or outside the territories of the State, immediately before the date of the Agreement. It was, therefore, contended before us on behalf of the petitioner and respondents Nos. 2 ' . 23 that the personal and private. Properties of the late Ameer of Bahawalpur were immune and exempt from the payment of estate duty and the application of the West Pakistan Land Reforms Regulation, 1959 (M. L. R. No. 64), and other laws in force in the country.
63. In this connection in The State of Bihar v. Kameshwar Singh (AIR 1952 SC 252) on the Merger of the Indian States in Madhya Pardesh by virtue of the "Covenant of Merger" entered into between the Rulers and the Government of India the properties belonging to the former Rulers were recognised to be their private property. It was alleged in that case that the Rulers could not be deprived of their `personal rights' guaranteed to them under the Instrument of Merger and that the Bihar Land Reforms Act could not deprive the Rulers of such properties. It was urged that the estates sought to be acquired formed part of the `personal rights' guaranteed to the Rulers under the instrument of merger and that neither the impugned statute nor the notifications issued thereunder could deprive the Rulers of such properties in contravention of Art. 362 of the Indian Constitution. But this contention was repelled by a short and obvious answer to the effect that there was no contravention of any guarantee or assurance given by the Government under the covenant of merger as the estates in question were sought to be acquired only as " "private property" of the Rulers and not otherwise. In that connection the Court observed that the compensation provided for was in recognition of their private proprietorship, as in the case of any other owner. The Court further observed that the guarantee contained in the merger agreement was of a limited extent only. It assured the Rulers' properties declared as their private properties will not be claimed as State properties and the guarantee had no greater force than this. According to Mahajan, J. : "The guarantee or assurance to which due regard is to be had is limited to personal rights, privileges and dignities of the Ruler `qua' a Ruler. It does not extend to personal property which is different from personal rights. Further, this Article does not import any legal obligation but is an.
Assurance only. All that the covenant does is to recognise the title of the Ruler as owner of certain properties. To say that the Ruler is the owner of certain properties is not to say that those properties shall in no circumstances. Be acquired by the State. The fact that his personal properties are sought: to be acquired on payment of compensation clearly recognises his title just as the titles of other proprietors are recognised."
64. Similarly in the case of,Jagannath Behara and others v. Raja Harihar Singh Maharaj .
Bhrambara :Ray (AIR 1958 SC 239) after the Orissa Tenants Protection Act, 1948 had been.
Extended to the areas merged in the absorbing Province of Orissa,. By section 4 of the Orissa Merged States' (Laws) Act, 1950, the respondent, the ex-Ruler of the Merged Orissa State of Khandapara, evicted the appellants who were in occupation of the lands declared to be private properties of the respondent under the Agreement (dated 14-12-1947) entered into by the respondent, the ex-Ruler with the Government of India. Other tenants were inducted by him and put in possession of the lands. The evicted appellants applied to the Revenue Officer for being restored to possession under the provisions of the 1948 Act. In that case it was contended on behalf of the respondent that the full ownership, use and enjoyment of the properties was guaranteed to him under Article 3 of the Agreement. In that connection the Court, however, held as under: "The provisions of the said Agreement only protected his rights in the properties declared to be his private properties so that they could not be claimed at any time thereafter as State properties." such restrictions did not affect the full ownership, use and enjoyment of his private properties, any more than they did in case of other owners of land. As a matter of fact, under the terms of the 1950 Act, which extended the 1948 Act to the Merged State of Khandapara, he was entitled to the payment by the tenants of such fair and equitable rent as may be fixed by any competent authority appointed in this behalf by the Revenue Commissioner or the Commissioner of the Northern Division as the case may be and so long as -the tenants continued to pay such rent he was no worse off than were other proprietors of lands. The tenants would no doubt acquire rights of occupancy in respect of such lands but the acquisition of the occupancy rights by the tenants would not be calculated to affect his right to full ownership, use and enjoyment of his lands, because he would be entitled to eject the occupancy tenants also if the tenants used the lands comprised in their holdings in any manner which rendered them unfit for the purposes of the tenancy or committed a breach of conditions consistent with the provisions of the tenancy laws in force in the Merged State concerned on breach whereof they were under the terms of the contract between themselves and the landlord liable to be ejected."
65. Also in another case in Sudhansusekhar Singh Deo and another v. The State of Orissa and another (AIR1961SC196) the facts were that by Article 4 of merger agreement executed by the Ruler of Sonepur on 15-12-1947 the Ruler after the merger was entitled to all personal privileges enjoyed by him whether within or outside the territories of the State, immediately before the 15th day of August, 04'. By Article 5, the Dominion Government guaranteed the succession according to law and customs, to the Gaddi of the State and to the personal rights, privileges, dignities and titles of the Ruler. By Article 3, he remained entitled to full ownership, use and enjoyment of all private properties (but not of the State properties) belonging to him on the date of the merger. On December 30, 1949, the Governor of Orissa promulgated Ordinance No. 4 of 1949 providing for the application of the Orissa Agricultural Income-tax Act, 1947 to the merged Orissa States. This Ordinance was later on replaced by the -Orissa Merged States (Laws) Act 16 of 1950. The Agricultural Income-tax Officer assessed the ex-Ruler to pay tax for the years 1950-51 to 1953-54.
He disputed his liability to pay the agricultural Income-tax, by virtue of the merger agreement. But the Supreme Court of India repelled his contention and held that the privileges guaranteed by Articles 4 and 5 were personal privileges of the Ruler as an ex-Ruler and those privileges did not extend. To his personal property. Moreover, ex-Ruler was a 'person' within the meaning of the word in section 2 (f) as amended by the Adaptation of Laws Order, 1950, of the Orissa Agricultural Income-tax Act, 1947.
66. It was expressly stipulated in the Bahawalpur Merger Agreement that His Highness the late Ameer of Bahawalpur shall be entitled to the full ownership, use and enjoyment of his private properties, not being State properties.. In this connection a list of those properties was also drawn up and recognised by the Government. By this it was agreed that these properties shall not be - treated as the State properties. But it did not mean that these properties in the private ownership of the late Ameer o A Babawalpur were, in any manner, were placed above the law of the land and were not subject to it like all other owners of private properties. As a citizen of Pakistan the laws of the land were equally applicable to him subject to the immunities, if any, and the personal privileges, dignities and titles enjoyed by him and his family members. In this connection the petitioner submitted in para. 18 of his rejoinder that according to entry 3 of the "List of Privileges" enjoyed by His Highness the Ameer of Bahawalpur, as Ruler of Babawalpur State at the time of its integration as part of the Province of West Pakistan in October 1955 approved by the Government, the Ameer of Bahawalpur has total immunity from the payment of Income-tax, Duties, etc. In Pakistan". The petitioner also produced a copy (Annexure P. 1) of what purports to be a list of the "privileges" enjoyed by His Highness the Ameer of Bahawalpur as Ruler of Bahawalpur State at the time of its integration as a part of West Pakistan Province in October 1955. But in this connection at the hearing before us on behalf of respondent No. 1, Syed Wasiq Shah, Deputy Secretary, States and Frontier Regions/Divisions, ?Ministry of Interior, etc. Government of Pakistan, Islamabad, filed his affidavit. He affirmed that he has access to the records pertaining to this matter and that there was no such document in existence on their record corresponding to the copy Annexure P. 1 filed by the petitioner with the rejoinder. It is, therefore, difficult for us to hold an enquiry into this dispute.
67. Indeed the question as to whether the private properties in dispute left behind by the late Ameer of Bahawalpur, on his demise on the 24th of May, 1566, were liable for the estate duty under the Estate Duty Act X of 1950, has come up before us indirectly. So far none of the competent, authorities vested with jurisdiction in this behalf under the Estate Duty Act has passed any orders against the petitioner and respondents Nos. 2 to 23. Only the Central Government in the exercise of the powers vested in it under Article 3 of the President's Order No. 12 of 1961 has passed the impugned Order called the Acceding State (Property) Order 1961. In that Order in purporting to distribute these properties among the heirs of the late Ameer of Bahawalpur the Central Government has made a provision B for the proportionate payment of the estate duty that may be due from them. But this is only in case afterwards the estate in question was assessed to the estate duty by the competent authorities under the Estate Duty Act. Otherwise this provision made in the impugned Order in this respect is altogether gratuitous. The liability of the petitioner and respondents Nos. 2 to 23 eventually for the payment of the estate duty, if any, still remain3 to be ascertained at the hands of the competent authorities under the Act.
68. In this connection it shall be sufficient to mention here in passing that the late Ameer of Bahawalpur was enjoying a two-fold status--he was the recognised Ruler of the former State of Bahawalpur and also as a natural person a citizen of Pakistan. Like all human beings he met his sad demise, on 24th of May, 1966. In this connection section 4 of the Estate Duty Act lays down that in the case of "every person" dying, there shall, save as hereinafter expressly provided, be levied and paid upon the principal value of all property which passes on the death of such person, a duty C called "estate duty". Therefore, it shall be for the petitioner and respondents Nos. 2 to 23 to establish to the satisfaction of the competent authorities that they were saved from the operation of this section against them. Indeed this matter is already pending before respondent No. 24 and the authorities under him. We have, therefore, refrained from expressing any further opinion on this part of the case and the contentions raised on behalf of respondent No. 24 before us in this connection.
69. Respondent No. 1 has also raised a preliminary objection to the effect that this writ petition for the specific enforcement of the Merger Agreement between the parties was not legally competent.
But there is no force in this contention. The case of the petitioner was based on the allegations that the Merger Agreement was a part of the Constitutional law applicable to the former State of Bahawalpur. Moreover in this writ petition the validity of the impugned Order called the Devolution and Distribution of Property (Ameer of Bahawalpur) Order, 1969, passed by the Central Government under Article 3 of the President's Order No. 12 of 1961, has been seriously questioned by the petitioner. We, therefore, find no force in this objection.
70. For the foregoing reasons we partly accept this petition and hold and declare that the Devolution and Distribution of Property (Ameer of Bahawalpur) Order, 1969 was not passed by respondent No. 1 in accordance o with law and is of no legal effect. The matter shall now go back to the Central Government for a fresh disposal of the dispute before it in accordance with law. In view of this divided success of the parties they shall bear their own costs.