1. MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from order, dated 1Ei-3-1961 of the Lahore High Court whereby a writ petition arising out of direction for the eviction of the petitioner under the Rent Restriction Ordinance on ground of default in payment of rent, was dismissed.
2. One Muhammad Sharif purchased (in 1960) the shop in dispute, an evacuee property, in auction held under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The property was later on sold to Bashir Ahmad respondent in December, 1979. The petitioner had defaulted in payment oaf rent for nearly 25 years. The new owner filed an ejectment petition for the eviction of the petitioner on ground of default in payment of rent and personal !Requirement, in April, 1980.
3. The petitioner's plea before the Rent Controller was that even though he had knowledge of the transfer of the property and the change of ownership, he was entitled to a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 notwithstanding its repeal ; and because no such notice was served, therefore, the relationship of landlord and tenant did not exist ; that being so, the landlord could not have filed the eviction petition. The learned Rent Controller relying on Rehmat Bibi etc.. v. Maryam Akhter (1980 CLC 883held that after the repeal of the Displaced Persons (Compensation and Rehabalitation) Act,. Notice under section 30 of the Repealed Act was not necessary ; and the default in payment of rent having been admitted, ejectment order was passed on ground of default without conducting any further proceedings.
4. On petitioner's appeal, the learned District Judge held that the petitioner "did not pay rent for -- th of the century" He deserved no leniency in so far as the factual side of the case is concerned. On the legal issue, regarding notice under section. 30, while repelling the argument advanced on behalf of the petitioner, the learned District Judge placed reliance on the following observation made by a learned Single Judge of the Lahore High-Court is Ghulam Qadir v. Nazir Ahmad (PLD 1980 B J 15 "Assuming a transferee does not serve the requisite notice, on the tenant even after a period of fifty years. Can it reasonably be claimed that despite repeal of the enactment, even after the lapse of half a century, the transferee would remain saddled with the responsibility of issuing notice to the tenant, and refrain from initiating ejectment proceedings against him, for a further period of six years. Court is unable to accept such an interpretation leading to startling results. The land--lord's liability to issue notice to the tenant continued only as long as section 30 was in force. The obligation being co-extensive with the law on the subject the landlord shall not be burdened with it, after the repeal of the Act."
5. Coincidently, the writ petition filed by the petitioner challenging the decision with regard to the notice under section 30, came up for preliminary hearing before the same learned Judge who had decided the case of Ghulam Qadir noted above. The question was not re-examined as the learned Judge after hearing the arguments afresh on the point, was of the view that no justification had been made to differ with the reasoning in the earlier decided case. The Constitutional Petition was accordingly dismissed in limine.
6. Learned counsel for the petitioner has contended that notwithstanding the repeal of the Displaced Persons (Compensation and. Rehabilitation) Act of 1958, it was incumbent on the respondent landlord to serve notice under section 30 of the Repealed Act because the petitioner had acquired a right to such a notice and the same being an obligation of the landlord before seeking eviction of the petitioner, the right as also the liability-would remain in force under section 6 of the General Clauses Act, 1897. He has placed reliance on Muhammad Iqbal Ahmad Qureshi v. Mst. Jaleesa Begum (PLD- 1980 Lah. 443and Raj Malal Khan v. Mir Hassan (1980 CLC 1422Various provisions of the relevant statutes which have been referred in the decided cases are reproduced below :-
(i) Displaced Persons (Compensation and Rehabilitation Act, 1958 (Act XXV111 of 1958).
30. Protection of certain occupants,-(I) Where any person is in posses--sion of any evacuee house, or shop, or has been declared by a Custodian to have tenancy rights from a date prior to the fourteenth day of August, 1947, in any industrial concern,, cinema house or printing press which is transferred to any other person under .The provisions of this Act, then, notwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer Provided that ---
(a) it shall be lawful for the transferee to charge a rent on the basis of the latest assessment carried out by the municipality or local authority, as the case may be, for other properties in -the locality generally ; and
(b) it shall not be lawful for the transferee to eject such persons from the house, or shop for a period of six years,. And from the industrial concern, cinema house or printing press for a period of three years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgement due).
(2) Where the transferee does not give notice within one month, as required by proviso (b) to subsection (1), the period mentioned in that proviso shall count from the date of receipt of such notice by the tenant. .
(3) Nothing in proviso (b) to subsection (1) shall apply to a tenant-
(1) who has not within three months from the date of receipt of a notice of demand sent to him by the transferee by registered post (acknow--ledgement due), paid or tendered the amount of rent or arrears of rent due for any period after the transfer ; or
(ii) who after the transfer, has sublet or otherwise parted with the possession of the house or shop, industrial concern, cinema house or printing press, or any part thereof, or has committed acts which are destructive of or injurious to the property nor shall anything therein apply to the tenant of any house or shop who, in any urban area within the same town or city, owns a house or shop, as the case may be.
(4) On the expiry of the period mentioned in proviso (b) to subsection (1) or on the contravention of any of the provisions of subsection (3), whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship.
(ii) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975).
7. (This Act had re-enacted law with the repeal of the relevant Ordinance. No. XV of 1974).
2. Repeal of certain laws.---(1)...............
(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 Govern--ment 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 the Act or Regulation hereby repealed to which the proceedings related.
(iii) General Clauses Act, 1897
6. Where this Act, or any Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not .---
(a) revive anything not in force or existing at the time at which the repeal takes effect ; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or
(e) affect any investigation, legal proceedings or remedy in respect of any, such right, privilege, obligation, liability, penalty, forfeiture, or punish--ment as aforesaid ; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
8. Th;, controversy raised by the learned counsel relates to the second part of section 30 which provided protection to the statutory tenant for a certain period and also prescribed the procedure for the effectuation of that protec--petition. It was made incumbent on the landlord (transferee of the property) to send a notice with regard to the transfer of the property to the statutory tenant within a month of such transfer by Registered Post A. D. ; and it was further provided that "it shall not be lawful for the transferee to eject such person" from the transferee property during the stipulated period except if and when the tenant contravenes the conditions spelled out in subsection (3) of section 30. Subsection (2) of section 30 had provided that the stipulated period in case of non-issuance of notice within a month of the transfer, would count from the date of the receipt of such notice by the tenant. These provisions laid down the procedure for effecting the transition to the stage when the tenant was to enjoy all rights and suffer all liabilities in accordance with the ordinary Rent Restriction Laws, under section 13(4) ; which would ;put him at par with other tenants. There is no indication in these provisions or intention underlying the same that the Legislature wanted to create two permanent categories of tenants in Pakistan, one enjoying a special protection for all times to come -simply because they happened to be tenants in the transferred properties ; and the others not to have any such special consideration, because they were tenants of other categories of properties. Had it been so, clear language could have been used in section 30 for creating permanent rights and permanent machinery in that behalf.
9. The afore-reached conclusion gets support from another well understood peculiar aspect of the entire legislation regarding evacuee properties and displaced persons. It has already been highlighted by this Court in many cases. It would be of advantage to reproduce an observation wade in this behalf in the case of Mian Rafluddin and 6 others v: The Chief Settlement and Rehabilitation Commissioner and 2 others (PLD 1971 SC 252at p. 273: - "These decisions do not, in my opinion, assist us in determining the exact nature of the right, if any; in the appellant in the present case. They are not in pari materia. In order to ascertain this one must, of necessity, refer to the statutory provisions under which the right is being claimed. No general rule can be laid down, for, each case will depend upon its own facts and circumstances and the statutory provisions applicable to it.
10. Let me, therefore, examine the nature of the law which is applicable in this case. As was pointed out by the Federal Court in the case of the Punjab Province v. L. Sita Ram and others PLD 1956 FC 157, while considering the nature of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, such legislations are legislations of an extremely special character which are from the very nature of things to be construed not so much on considerations that would weigh with Courts of law but also on considerations of policy. They were designed for meeting an extraordinary situation of a complex and confusing nature created by the influx of a larger number of refugees who had to be settled and were intended to be so adaptable as to meet the changes in the situation that developed from time to time. They could not, therefore, be construed upon strict legal principles and certainly not in such a manner as to defeat the very object for which such special legislation was designed." (Underlining* is ours).
11. The above-noted ratio in Mian Rafiuddin's case when applied to the analysis of section 30 earlier made would require that due effect is to be given to various parts of section 30 in accordance with the nature of the particular provision thereof. The second part of section 30 as discussed, dealt with a transitional stage and was of extremely `special character' so as to "meet the changes in the situation"-these phrases have been borrowed from the judgment in Rafiuddin's case. Looked at in this light, the special provisions in the second part of section 30 dealing with a notice and transitory protection connected therewith, were of temporary character.
12. This aspect cannot be ignored when considering the application of section 6 of the General Clauses Act ; the purview of which would control the apple--cation of clauses (a) to (e) thereof.
13. One of the important conditions in the purview is that the intention underlying the provision to which any of the clauses of section 6 is sought to be applied will have to be determined and if it runs contrary to the provision (of section 6 sought to be applied) then the said provision would not be attracted. As held in the foregoing discussion, the character and intention underlying the provisions contained in section 30 which related to the issuance of notice and protection of section 30 were of transitory and temporary character. They were not intended to create any permanent rights and liabilities Therefore, the right, privilege, obliga--petition or liability or for that matter the penalty or forfeiture and other similar incidence covered by various clauses of section 6 of the General Clauses Act would not apply to those provisions of section 30 after the repeal which were of transitory and temporary character.
14. Two clarifications need to be made here :-- . ---(I) That subsection (4) of section 30 which, inter alia, contains an element of permanence would of necessity be read with the first part of section 30-: it is the application of the ordinary laws including the Rent Restriction Laws after the expiry of the temporary phase or the repeal of the law which ever happens to be earlier. The repeal Would not nullify the mandate contained in section 30(4) with regard to the application of ordinary laws (including the Rent Restriction Laws) after the repeal ; and
(2) that in the present controversy, the application of section 6 of the General Clauses Act has not been excluded on the ground that the requirement of service of notice and/or the protection for six years prior to the repeal did not fall under any of the concepts like rights and liabilities mentioned in the said section 6 ; but on account of the intention underlying the provisions contained in section 30 itself, It needs to be mentioned that similar question was raised in Amina Begum etc. v. Mehar Ghulam Dastgir (PLD 1978 SC 220). An observation made by the High Court in that case (see Law Notes 1979 Lahore 299- to the effect that after the amendment in the relevant law no protection as claimed therein yeas available to the tenant ; was brought under challenge in this Court. The High Court had taken the view that even if the case was to be remanded with regard to an alleged technical defect regarding the provision/protection contained in section 30, the result with regard to eviction of the tenant on merits would not be different and it would be an exercise in futility because the protection bad in the meanwhile been taken away by the repeal of the relevant law. In an elaborate judgment, this Court repelled the argument regarding the alleged technical defect and while uph6lding the approach of the High Court, observed that "if the case was to commence afresh after the eleven years of this litigation by the 28th of February, 1977, when the impugned order was passed by the High Court, the result on account of the accepted position on merits of this issue would not be any different". It seems that although the case was decided on consideration of the arguments advanced regarding the alleged technical defect in the proceedings of the Rent Controller the approach of the High Court was not disapproved.
15. It also needs to be mentioned that the reasoning in the Baghdad-ul-Jadid case of the Lahore High Court (Ghulam Qadlr v. Nazir Ahmad), which was relied upon by the High Court in the present case with regard to the nature of the provisions regarding notice and protection contained in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act is in accord with' the view taken by us regarding the character and intention underlying those provisions. We approve of the same.
16. The contrary view in this behalf by some learned Judges in the High Courts, with respect, is not correct.
17. The result is that this petition fails and is accordingly dismissed.