' In these two connected Second Appeals (S. A. O. No, 442/77 and S. A.
0. No, 160/78 no arguments on merits have been addressed by the counsel for the appellants.
2. The only point which is common in these two appeals raised by the learned counsel for the appellants is that even after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on 30-6-1974 the tenant in possession of the evacuee property is still required to be served with a notice under section 30 of the Repealed Act and that the protection of fix years provided in section 30 of the Repealed Act will come to an end only by such notice and not otherwise.
3. Learned counsel for the appellants relying upon E. A. Evans v. Muhammad Ashraf (I) has argued that tenancy is a substantive right and the protection from ejectment provided by section 30 of the Repealed Act shall continue in force and could be brought to an end only by service of notice under section 30 of the Act and no other manner. While elaborating his arguments he has relied upon section 6 of the General Clauses Act, 1897 that repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. But this section is applicable with the qualifying object contained in section 3 providing for the definition.
The expression used therein is "unless there is anything repugnant in the subject or context". To find out the above object the best way is to examine the provisions of the Repealing Act enacted as savings. What was intended to be saved after the repeal of the Act (XXVIII of 1958) is clearly provided in subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975 and nothing else was saved expressly. Relevant provisions of section 2 of Act XIV of 1975 are reproduced with advantage.
"(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.
(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.
(4) The final orders passed under subsection (3) shall be executed by the Board of Revenue of the Province in accordance with the provisions of Act or the Regulation hereby repealed to which the proceedings related."
' In this connection I am also fortified in my view by a judgment reported as Mst. Amino Begum etc. v. Mehr Ghulam Dastgir (2).
(1) PLD 1964 SC 536 (2) Law Notes 1979 LA. 299
4. There is no dispute with the proposition that tenancy is a substantive right but the question arises whether the condition of notice imposed on the tenancy by section 30 of the Repealed Act, 1958 was an ordinary incidence to or an additional burden placed on the tenancy. The documents of title used to be issued either in the form of Provisional Transfer Order or Permanent Transfer Deed and now substituted for the both by Transfer Order contains no such condition o notice to the person in possession of the property which is transferred to any person from the compensation pool. Rather the ejectment of the tenant is the implied element of enjoyment of ownership of property but this right can be restricted by mutual contract as in case of a tenant for a fixed period but once the lease comes to an end the stipulation disappears. Also stipulation may disappear by operation of law or I the exercise of special power reserved by the owner to himself. In the circumstances the paramount owner thought it fit to dispense with the protection which was initially provided by a condition of notice in the law avoiding to spread litigation on different sides as between the person entitled to the transfer of the property and the Settlement Authorities and between the persons in possession inter se and the persons in occupation and the transferees during the continuation of the Settlement Operation. The object of the protection appears to have been achieved by closing the Settlement Operation and leaving the transferees free in the matter of relationship of the landlord and tenant to be regulated by the general law, as expressed in rule 4 of the Permanent Transfer Rules, 1961, which is produced with advantage :- "4. (1) Subject to the provisions of the Act, the rules and the Scheme a transferee in whose favour a record of permanent transfer has been made under rule 3 shall be entitled to hold and enjoy the property and all the rights, title and interest appurtenant thereto transferred to him, and to transfer or alienate the same in accordance with the normal law.
' And in view of the practical conditions came to exist after the repeal the protection and requirement of notice had disappeared.
5. Lastly learned counsel for the appellants has submitted that if the protection is held to have been removed and requirement of notice dispensed with by the repeal of Displaced Persons (Compensation and Rehabilitation) Act, 1958 his clients should not be treated as tenants but trespassers and they could be dispossessed by decree of the Civil Court and that the Rent Controller had jurisdiction in such cases. It was not the defence of the appellants that they had come to occupy the property by some overt act. The property was part of the Compensation Pool and the persons in possession of the property deemed to be in authorized possession even without allotment orders and at later stage simple occupation of the property was considered to be authorized. This is a case in which the litigation had been fought up to the level of the High Court and it could not be said now that the possession of the appellants was in the capacity of trespassers which stand was never taken by the appetent against the owner with paramount title.
How could then they take up that position now. In the instant eases it is not proved by any evidence that the appellants were the trespassers into the property under the previous owner and that status was carried forward by them under the present transferee. Also every person in possession of the property which formed part of the Rehabilitation Pool in the first instance and the Compensation Pool and continued in possession of the property was considered to be the tenant of the Rehabilitation/Settlement Department unless it was expressly ordered in any particular case that the person was a trespasser. If the appellants had set up such a defence against the previous owner the provisions of section 29 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958 would have become available to the previous owner to deal with him properly and his eviction could have been ordered summarily before transferring the property to the transferee respondents. Furthermore, if it were considered in the absence of any stipulation in the document of title that protection of 6 years had continued even after repeal then there remained nothing against which the repeal would be operative. The foundation of the condition was section 30 of the Repealed Act which had been removed, then automatically the edifice which could be raised on that foundation should fall to the ground. It is a firm view of the Supreme Court that where the basic provision of law is taken off the statute then anything standing on it should lose its efficacy. In view of the above rule there is no force in the arguments of the learned counsel for the appellants.
These appeals are, therefore, dismissed but there is no order as to costs.