' In these 7 appeals under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the 1979 Ordinance), common questions of law have been raised. I therefore, propose to decide all these 7 appeals by this common judgment.
2. In F. R. A. No. 19 of 1981, in September, 1978, the appellant filed a rent application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the 1959 Ordinance) for eviction of the Government of Sind (hereinafter called the Government) and the Karachi Metropolitan Corporation (hereinafter called the Corporation) for their eviction from the house bearing No. C-37, Block D, North Nazimabad, Karachi, on the grounds of default in payment of rent and personal requirement.
(ii) It may be mentioned here that the house was let out to Mrs. Safia Naheed who operated a school therein under the name and style 'Pak Land School', at a monthly rental of Rs.
430. Upon promulgation of Martial Law Regulation No. 118 in 1972, the School was nationalised and all its properties with leasehold right's to the house vested in the Government. Thereafter, on the instructions of the Government, the Corporation started running the School.
(iii) Mr. Sabihuddin Ahmed stated that on 20-10-1979, an order for deposit of arrears of rent was passed, but it was allegedly not complied with and therefore, on 9-4-1981, an application under section 16 of the 1979 Ordinance was filed, which remained pending.
(iv) However, after issuance of Notification No. V111(3)S01/75 dated 29-7-1980, by the Government and in exercise of the powers conferred on them under subsection (2) of section (3) of the 1979 Ordinance, on an application made on behalf of the respondents, the learned Controller by the order, dated 27-11-1980, rejected the applications.
(v) It may be convenient, if I reproduce here the Notification. It reads as follows "No. VIII(3)S01/75.-In exercise of the powers conferred by subsection (2) of section 3, of the Sind Rented Premises Ordinance, 1979. The Government of Sind, are pleased to exempt the premises belonging to t!-e councils constituted under the Sind Local Government Ordinance, 1979 and the premises of the Colleges and School, taken over under Martial Law Regulation 118 of 1972 from the application of the said Ordinance."
3. In F. R. A. No. 146 of 1981, the facts are almost similar with the exception that the application for eviction under section 13 of the 1959 Ordinance was filed only against the Corporation for its eviction from the premises bearing House No. 111-G. 9-16/A, Nazimabad, Karachi, on the grounds of default in payment of the rent and materially impairing the value and utility of the premises, nuisance and personal use.
4. In F. R. A. No. 172 of 1981, the application was filed against the Director of Schools, for eviction of the Director from the premises bearing No. A/169, Block-H, North Nazimabad, Karachi, on the grounds of default in payment of rent and personal requirement of the premises.
5. In F. R. A. No. 187 of 1981, the application was filed against the Corporation in respect of the premises bearing No. H 11/23, G. R. E. 467/29, Ghohar Street, Garden East, Karachi, for eviction of the Corporation on the grounds of default in payment of rent and personal requirement of the premises.
6. In F. R. A. No. 189 of 1982, the application was filed, against the Government, their officers, and the Corporation for their eviction from the premises bearing No. 8, Chalta No. 5, Survey Sheet No. 9, Commercial/ Machine Area, Liaquatabad, Karachi, on the grounds of default in payment of rent and personal requirement of the premises.
7. In F. R. A. No. 215 of 1981, the application was filed against the Government, Principal, Government Islamic College (for Women), for their eviction, from the premises No. J. M. 5/925, Bahadur kar Jang Road, Karachi, on the ground of default in payment of rent and unauthorised construction.
8. In F. R. A. No. 379 of 1981, the application was filed against the Government and the Corporation for their eviction from the premises bearing No. SR-911, Frere Road, Karachi, on the grounds of default in payment of rent, sub-letting, and impairing the value and utility of the premises.
9. The remaining material facts are the same as mentioned in respect of F. R. A. No. 19 of 1981, in paragraph 2, hereof with the exception that no application for deposit of rent is said to have been made or any order for deposit of rent was passed in other cases.
10. 1 have heard Messrs J. H. Rehmatullah, S. Sabihuddin Ahmed, Rehanul Hasan Faruqui, Mushtaq Hussain, Wajihuddin Ahmad, Munir Hussain and Shafat Hussain Advocates for the appellants and Mr. Muhammad Ibrahim Memon, Additional Advocate-General, Sind, for Government and their officers, and Mr. S. M. Naqvi, Advocate for the Corporation.
11. The learned counsel for the appellants have questioned the order impugned in these appeals on the ground that the learned Controller seriously erred in applying the notification to pending proceedings. They submitted that the notification could not be given retrospective effect so as to apply it to pending proceedings.
12. Mr. Wajihuddin Ahmad additionally submitted that the powers under section 3(2) of the 1979 Ordinance could not be exercised in relation to the property in respect of which 'applications under section 13 of the 1959 Ordinance were filed.
13. On the other hand, Mr. Muhammad Ibrahim Memon, Additional Advocate-General, Sind and Mr. S. M. Naqvi, Advocate strenuously contended that the notification was rightly applied to pending proceedings as it was related to procedure and forum.
14. Therefore, the following points may have to be considered in these appeals.
"(1) Whether the notification operates retrospectively so as to affect the pending proceedings ?
(2) Whether the Government could not exercise powers under section 3(2) of the 1959 Ordinance, in respect of properties which were subject, matter of the pending proceedings ?
15. Now, taking up the first point it may be stated that there is no indication in the 1979 Ordinance that the powers under section 3 could be4 exercised retroactively at any time and there is also no indication in the notification that it was intended to exempt the properties with retrospective effect so as to affect the pending proceedings. It could not have been done for it is well settled that a notification issued under the purported exercise of the delegated powers under a law cannot be made to operate. Retroactively so as to impair an existing or vested right or impose a new - liability or obligation. However, if authority is needed reference may be had to : ' Sh. Rahmatullah v. The Deputy Settlement Commissioner, Centre 'A' Karachi and others (1), Sheikh Fazal Ahmad v. Raja Ziaullah Khan and
(1) PLD 1963 SC 633 ' another (1), Works Co-operative Housing Society and another v. The Karachi Development Authority (2), Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong (3), Commissioner of Sales Tax (West) Karachi v. Messrs Kruddsons Ltd. (4) and Muhammad Suleman etc. v. Abdul Ghanl (5).
16. In Sheikh Fazal Ahmed's case, Kaikaus, J., at page 501 of the report observed as follows "An obvious objection to this amendment is that it is a notification by the Government in exercise of the power of subordinate legislation and such power does not include a power to give retrospective effect. The power of subordinate legislation which is exercised by the executive is a very limited power. Its exercise even to a limited extent had been objected to on the ground that the fact that a Legislature had been empowered to legislate on a particular subject did not imply that it could delegate its power of legislation to any other person or body of persons. The power of delegation had, however, to be accepted to a limited extent because in many cases it is almost impossible for the Legislature to make provisions in detail and in some cases the time or the occasion for applying a statute has to be left to the executive Government. It was considered that it was not possible for the Legislature to exercise its functions properly unless the grant of subordinate legislative power to the executive was permitted to this extent. However, the subordinate legislative power is to be permitted only to the extent to which it is necessary for the power exercise of its function by the Legislature and a power to legislate with retrospective effect has never been accepted as included in a power of subordinate legislation."
17. In the case of Collector of Central Excise and Customs and 3 others v. Azizuddin Industries Ltd.
Chittagong (supra) Yaqoob Ali, J. (as he then was) at page 444 of the report observed :- "The next question which arises in this case is whether the notification of the 28th February, 1964, which purported to destroy completely the rights vested in the respondent by the notification dated the 30th June, 1961, and the 17th May, 1963, is valid in law. It is a settled rule that an executive authority cannot in exercise of the rule-making power or the power to amend, vary or rescind an earlier order, take away the rights vested in the citizens by law. This very question fell for decision before the Court in Civil Appeal No. 3-P of 1965 (Government of Pakistan v. Messrs Mardan Industries Ltd.) Dealing with the validity of the latter Notification dated the 19th May, 1964 it was observed : 'It is well settled that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such construction.' . . . . . . . .
' The respondent had acquired a vested right of exemption from the levy of excise duty on all the goods produced or manufactured by it for a period of four years under the Notifications of the Central Govern-
(I) PLD 1964 SC 494
(2) PLD 1969 SC-430
(3) PLD 1970 SC 439
(4) PLD 1974 SC 180
(5) PL,D1974SC190 ' meat referred to above. That vested right could not, therefore, be taken away by an executive action."
18. In Commissioner of Saks Tax (West) Karachi v. Messrs Kruddsons Ltd it was observed by Muhammad Gul, J., at page 184 of the report reiterated rule as follows :- "It is well-settled proposition that a notification by the Provincial Government cannot operate retrospectively to impair an existing right or to nullify the effect of a final judgment of a competent Court even if the notification be expressly so designed."
19. I may also quote the observation of Karam'Elahee Chouban, J., in Muhammad Saleem v. Abdul Ghani of the report ' Even otherwise it is well-settled as laid down in Sh. Faze Ahmed v. Raja Ziaullah Khan and another and Sh. Rehrnatullah v. The Deputy Settlement Commissioner Centre 'A, Karachi and others that such notification which curtail or extend rights, of the citizens, cannot be retrospective and this is all the more so in such cases when a state of things is to take place by publication of a notification which means from the date of its publication in the Gazette and not from any prior date or to be more precise, not from the date of notification itself if it is prior to the actual date of the publication in the Gazette, because then it will tantamount to giving that notification a retrospective effect not from its publication but from a date prior thereto which as explained above is not permissible according to the relevant law itrYtolved in this case."
20. However, the learned Additional Advocate-General and S. Muslim Naqvi have submitted that the Notification did not affect any right but it only changed the procedure and forum and therefore, the notification was rightly applied by the Controller to the pending proceedings.
21. The Controller in the impugned order has applied the notification to the pending proceedings by simply quoting the notification and the provisions of subsection (2) of section 3 of 1979 Ordinance and stating that he was of considered opinion that he was no more competent to proceed further with the cases as the premises in the ease were exempted from the application of the Ordinance.
22. In support of the view taken by the Controller Mr. Naqvi heavily relied on a Single Bench decision of this Court in Mst. Kha3ija Merchant v. The K. M. C. Through Mayor (1), wherein the learned Judge observed "there can be no manner of doubt that the notifications relates to a procedural law inasmuch as bars a remedy. No party has a vested right in a particular remedy conferred by Statute". In support the learned Judge relied on Adam Afzal v. Capt. Sher Ajzal (2), wherein their Lordships of the Supreme Court have held as follows '"The general principle with regard to the interpretation of statutes laid down in the well-known case of Colonial Sugar Resins Co. Ltd. v. Irving 1905 A C 369 is that 'if the matter in question be a matter of procedure only', the provisions would be retrospective. 'On the other hand, if {{FOOT NOTE}}
(1) 1983 CLC 535 (2) PLD 1969 SC 187 {{FOOT NOTE}} ' it be more than a retrospective. 'On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act', then 'in accordance with a long line of authorities-extending from the time of Lord Coke to the present day', the legislation would not operate retrospectively, unless the Legislature bad either `by express enactment or by necessary intendment' given the legislation retroactive effect. To the same effect are the observations of Jessel, Master of the Rolls, in the case of In re : Joseph Suche & Co. Ltd. (1875) 1 Ch. D. 48 where it was observed that as a "general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not effect them, it is said that there is one exception to that rule, namely, that, these enactments merely effect procedure and do not extend to rights of action, they have been held to apply to existing right'. The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that question relating to jurisdiction over a case of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus, a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospectively being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights as affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective tact to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassm ent or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."
It will be seen from the above observations that this case itself recognizes the principle that if the matter is more than a matter of procedure, if it touches a right in existence at the passing of the Act, then in accordance with alone line of authorities-extending from the time of Lord Coke to the present, the legislation would not operate retrospectively, unless the Legislature had either' by express enactment or by necessary intendment' given the legislation retroactive effect.
23. Therefore, the first question for consideration is what are procedural matters ?
24. In Adnan After's case matters relating to the remedy the mode of trial, the manner of taking evidence and forms of Potion were held to be matters of procedure. Reference is made in this very case to Crawford, according to whom the questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence provided burden of proof is not shifted are matters of procedure.
25. In the light of the above observation I have to consider what is the effect of the notification?
Does it affect the procedure or changes the forum only or does it affect the rights of the parties? If I examine the provisions of the Ordinance, 1959 or 1979 Ordinance, it would be obvious that it has conferred certain rights on a landlord and certain rights on a tenant and similarly it imposes certain obligations on them. For example a landlord is given a right to evict a tenant in case he makes default in payment of rent, without the permission of the landlord uses the premises for the purpose other than that for which it was let out or commits acts which impair the material value or utility of the premises let out to him. Similarly a tenant could not be evicted except on the grounds mentioned in the relevant section of the Ordinance. These rights have not been conferred on such persons by or under any other law including the Transfer of Property Act, wherein the rights and obligations of lessor or lessee are governed by the provisions of sections 105 to 117. Now, therefore, if a tenant has committed an act whereby a landlord has become entitled to evict a tenant and a landlord has filed a case he has acquired a vested or substantive right. It will therefore, not be a matter of procedure. Further it will also not be a matter of change of forum for he cannot proceed with the case before any other Court or forum on the same grounds or on the same cause of action.
' Here I will refer to the following 'observations of Hamoodur Rahman, J., in Ghulam Muhammad Khan Lundkhor v. Safdar All (1), which show that 1959 Ordinance conferred certain rights and obligations on landlord and tenant.
' Having regard to the language of this subsection we find it difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequences of a default has used mandatory words to direct the Rent Controller, to enforce the consequence. The object of this subsection is not so much to afford the landlord an expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof purported not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but but also to co-relatively give special benefits and protections to tenants tinder certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or the other party deprived of his rights under the law (vide Maxwell page 285, 11th Edition)."
The right, therefore, has had become vested right.
26. I may here refer to some cases in support of my view. First of all I shall refer to the opinion of Qadeeruddin Ahmed, J., (as he then was) in Nabi Ahmed and another v. Home Secretary, Government of West Pakistan Lahore and 4 others (2), wherein the Honourable Judge while noting the difference between procedural and substantive laws at page 613 of the report observed as follows :- "24. People do not mind changes in law, if only the procedure is altered without altering the substance of the law. True, it is not easy to draw a line between substantive and procedural law, but the task is not {{FOOT NOTE}}
(1) PLD 1967 SC 530 (2) PLD 1969 SC 599 {{FOOT NOTE}} ' impossible if the essential difference is kept in mind. According to Salmonds Jurisprudence, 12th Edition of 1965 at page 128 :- "The law of procedure may be defined as that branch of the law which governs the process of litigation. All the residue is substantive law, and relates, not to be process of-litigation, burto its purposes of subject-matter."
' Thus : "A right of appeal, a right to give evidence on one's own behalf, a right to interrogate the other party', 'rules defining the remedy ... . As those which define the right itself, `that part of criminal law which deals, not with crimes alone, but with punishments also, as the measure of liability and many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules of substantive law."
' And as such must be treated as falling within the classification of substantive law. In this category has been included by this Court the charge of forum: "If in the process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice."
' While dealing with the question of vested right in paragraph 29 of the report the learned Judge observed as follows :- "29. What is a vested right ? According to Oxford English Dictionary, "vested" means "clothed, robed, dressed, especially in ecclesiastical vestments Vested rights Issentially differ from rights which are contingent that is, completely created vested interests may perhaps be defined as rights based not upon contract but upon custom". A close examination of these meanings and explanations reveals that a vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may be exercised. Those occasions and circumstances do not constitute contingencies, but are the peculiar characteristics of those rights. For instance, the right to cross-examine (not to re-cross-examine) a witness is a vested right, although the occasion for exercising it arises only if the witness says or has said something unfavourable and often after his examinationin-chief is over. The occasion to cross- examihe may not arise or may not be exercised but the right is not to be denied. The following discussion of the connotations of "vested rights" by J..G. Sutherland in his book on "Statutes and Statutory Construction", Vol. 2, Article 2205, is helpful in clarifying the above though. "it is impossible to assign, precise meaning to the term (vested right) for any attempt results only in conflict in the decisions. By "vested rights" can be meant no more than those rights whist under particular circumstances will be protected from legislative interference (unless it is clearly intended). But as it is a right which vests upon equities, it has reasonable limits and restrictions : it must have some regard to the general welfare and public policy, it is not a right which is to be examined, settled and depended on a distinct and separate consideration of the individual case, but rather on broad and general grounds which embrace the welfare of the whole community and which seek the equal and impartial protection of the interest of all."
The observations go to the core of the problem with remarkable directness. Their central idea is equally well the essence of the doctrine which is the subject of this discussion, that is, the statutes are presumed to be applicable to cases and facts which came into existence after they are enacted, unless there is a clear intention to give them retrospective effect."
27. I may also here refer to the case of Mian Rafiuddin and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (I), wherein M. R. Khan, 3., at page 298 of the report dealt with the vested rights, an accrued right or a substantive right. He observed as follows "A 'vested right', an accrued right 'or a substantive right' does not mean only title to property or office ; a right, benefit or an advantage conferred by a statute, if availed of by doing a thing as required by the statute, is also a right of this kind Again, if a right, benefit or advantage conferred by a statute is dependent on the happening of a contingency, then, the same becomes a 'vested or accrued right' after the contingency has happened. This can be illustrated by giving some instances for example, a co-sharer's statutory right to pre-empt the land transferred by another co-sharer out of the common holding, is a substantive right ; this right of pre-emption is the co- sharer's vested tight' and is capable of being enforced. After the Court has granted preemption, the pre-emptor again acquires a 'vested right' in the land itself. Similarly, a mortgagor's right to redeem a mortgage is a 'vested right' and is enforcible. Again, a lessor has a right under section 106 of the Transfer of Property Act to determine a monthly tenancy in respect of an urban property by 15 days' notice to quit. This right conferred by the statute is to be availed of by giving such a notice.
After such a notice has been given, the lessor acquires a substantive right to eject the lessee and to get possession of the demised premises. This is the lessor's 'vested right'. If the lessee does not quit pursnant to the notice, the lessor is entitled under the law to recover compensation from the lessee for the unauthorised use and occupation of the premises. The right to recover compensation is yet another substantive right. If the lessor has obtained a decree for compensation is a suit brought for the purpose, then, the decree so obtained by him becomes a property and his right thereto is his 'vested right'.
' Similarly, the right to obtain specific performance of a contract of sale is a right conferred by statute. o. This is his vested 'right of action' in the sense that it is he who alone can seek specific performance of the contract. This right is to be availed of by the presentation of a plaint in Court.
After he gets a decree for specific performance, the decree becomes his property and his right thereto is his 'vested right'."
' In support of the above observations the Honourable Judge referred to a number of English decisions including Queen v. Justices of the West Riding of Yorkshire (2), Abbot v. Minister for Lands (3), Jaxson v. Wooley (4), Knight v. Lee (5), Bowling v. Camp (6), Henshall v. Porter ; Attorney- General v. Vernazza (7).
' It may be mentioned that in the last named case it was held by the House of Lords that the right to prosecute any right is a 'vested or substantive right'. {{FOOT NOTE}}
(1) PLD 1971 SC 252 (2) (1876) 1 Q B D 220 (3).1895 A C 425 (4) 120 E R 292
(5) (18931 1 Q B 41 (6) 39 T L R 31
(7) 1960 A C 965 {{FOOT NOTE}} 27-A. Reference may also be made to Sutlaj Cotton Mills Ltd. v. Industrial Court (I), wherein the petition for Special Leave to Appeal against the order of the Tribunal was filed under Article: 160 of 1966 Constitution of Pakistan read with Laws (Continuance in Force) Order, 1968, a day prior to the coming into force of the new Constitution. At the hearing of the appeal a preliminary objection was raised that the appeal was not competent inasmuch as under Article 56(3) of the new Constitution the Supreme Court had jurisdiction to hear and determine appeals from judgments and not from the order of the Tribunal. The objection was overruled by the following observations made by Hamoodur Rahman, J. (as he then was) :- "Under Article 160 of the late Constitution this Court had undoubtedly the jurisdiction to grant special leave to appeal from the order of even a Tribunal and where leave to appeal had been granted before the commencing day of the new Constitution the appeal by such leave did not abate, as Article 58 of the new Constitution is not retrospective either by express enactment or by necessary implication; vide Zafarullah Khan v. Custodian PLD 1964 SC 865. The question here is whether the position would be the same if only the petition for special leave is filed before the relevant date. The answer to this question will depend upon whether the appeal by special leave allowed under Article 160 of the late Constitution was in the nature of a right or a mere matter of procedure. Article 160 of the late Constitution, in our opinion, was not a mere procedural provision, it gave to a person aggrieved by an order of any Court or Tribunal the right to approach this Court for special leave even in cases where ordinarily no appeal lay. It was a valuable right and not a mere matter of procedure. This right the appellant in this case certainly had vested in him on the day he filed his petition in Court and if the petition was heard on that day the objection now raised would not have been available. Can this right be now denied to him merely because in the ordinary course of business of this Court petition came up for hearing later ? Should the proceeding commenced for the enforcement of a right which had already accrued to the appellant before the commencing day, be not continued as if the Laws (Continuance in Force), Order, 1958, had not been repealed even under Article 250 of the new Constitution ? In our view, a vested right cannot be so taken away, for the appellant had a right to hive his petition heard on the basis of the law prevailing on the day he filed his petition."
28. There is yet another case of the Supreme Court to which reference must be made for it distinguishes the case of Adrian Alm!. It is Raja Madla Dad Khan Advocate v. West Pakistan Bar Council, Lahore and another (2), wherein at page 476 Muhammad Gul, J. Observed as follows :- "Thus a vested right of getting his case decided by the High Court having once accrued to a litigant cannot be taken away except by conferment of retrospectively on a subsequent law by express provision or necessary intendment.' The well-known decision of the Privy Council in the case of The Colonial Sugar Refining Co. Ltd. v. Irving L R 1905 A C 369 is the basic authority in support of the principle. Same view was taken by this Court in Sutlej Cotton Mills Ltd. v. Industrial Court PLD 1966 SC 472 of which the judgment was written by My Lord the Chief Justice. In that case a petition for Special Leave to appeal {{FOOT NOTE}}
(1) PLD 1966 SC 472 (2) PLD 1975 SC 469 {{FOOT NOTE}} ' was filed under Article 160 of the abrogated Constitution of 1956 read with the Laws (Continuance in Force) Order, 1958, only a day prior to the coming into force of the Constitution of 1962. The petition was accepted, of course after the coming into force of the new Constitution. At the hearing of the appeal before the Supreme Court a preliminary objection was raised that the appeal was incompetent inasmuch as under Article 58 (3) of the 1962 Constitution, the Supreme Court had jurisdiction to hear and determine appeals from judgments, decrees, orders and sentences of a High Court only and not from that of a Tribunal. On the principle enunciated in The Colonial Sugar Refining Co. Ltd.'s case it was held that appeal by special leave allowed under Article 160 of the prescribed Constitution of 1956 was in the nature of a right and not a mere matter of procedure and it gave a person aggrieved by an order of a Court or Tribunal the right to approach the Supreme Court for special leave even in cases where ordinarily no appeal lay. A valuable right had thus vested in the appellant on the day he filed his petition and if the petition were heard on that day the objection raised would not have been available. It was held that this right could not be denied to him merely because in the ordinary course of the proceedings of the Court the petition came up for hearing after the coming into force of the new Constitution. The objection was, therefore, overruled.
' As stated earlier even the new law as amended did not completely and once for all do away with the powers of the High Court to deal with the matter under the old procedure but provided for optional and discretionary substitution of the High Court's authority by the new Bar Council which could not on a reasonable interpretation be deemed to have taken away a valuable right vesting in the appellant. The position in Adnan Afzal's case was altogether different and in fact quite to the contrary. In that case the point for consideration before this Court was as to whether the West Pakistan Family Courts Act, 1964 affected the jurisdiction of the Magistrate under section 488, Cr. P.
C. And further whether it also affected proceeding already pending. Both the points were found in the negative for the reasons firstly that the provisions of the West Pakistan Family Courts Act, 1964 were more beneficial in so far as the scope of enquiry and grant of relief were concerned ; secondly, the Act gave exclusive jurisdiction to the Family Courts without affecting in the least the rights already accrued to a litigant and therefore, the change of forum and the alteration of mode of trial, rendered it merely procedural in nature so as to be given retroactive effect and lastly there was no indication in the law to the contrary effect which of course is apparently there in the instant case."
29. As stated earlier in this case Adnan Afzal's was also considered and distinguished and it was observed that the point for consideration before the Supreme Court was as to whether the West Pakistan Family Courts Act, 1964 affect jurisdiction of the Magistrate under section 488, Cr. P. C. And further it also affect the proceedings already pending and both the points were found in the negative for the reasons firstly, that the provisions of the West Pakistan Family Courts Act, 1964 were more beneficial in so far as the scope of enquiry and grant of relief were concerned and secondly, the Act gave exclusive jurisdiction to Family Courts without affecting in the least rights Already accrued to a litigant and therefore, the change of forum and alteration of mode of trial render it merely procedural in nature so as to be given retroactive effect ; and lastly there was no indication in the law to the contrary effect.
30. I must also refer to two decisions of our own High Court Messrs Hakimuddin Harmusji & Sons v.
Messrs Ghafoor Textile Mills (1), Mst. Minhajun Nisa v. D. C. & D. M., Karachi and the Director of Education Karachi (2). In the first named case it was laid down that a right to remedy in a Court of law is substantive and not.Matter of procedure. It was further observed that upon the jurisdiction of the competent Court being lawfully invoked, the right to remedy matures into a vested right.
' In the second named case the learned Judge at page 76 of the report observed as follows : "The right conferred by a statute which is awaiting adjudication, as in the present case, is as much a substantive or vested right as title to property or office.
' The right of action or the cause of action arising out of a contract or under a statute is the vested right of action of the person to whom it accrues, and these, as regards effect of new law on them, stand on them, stand on the same footing as other substantive rights or title to property or office.
Like the existing substantive rights including benefits or advantages that have accrued under statutes and title to property or office, the right of action or the cause of action which has already accrued cannot be destroyed or impaired by a new law unless that law, by its express provision or by necessary intendment, is retrospective in operation."
31. There are two direct cases on section 3(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959, which is in pari materia to the provisions under which the notification under consideration was issued. These are Lahore Municipal Corporation v. Mian Muhammad Raft (3) and Muhammad Nazir Ahmad v. The Lyallpur Improvement Trust, Lyallpur (4).
' In the second named case the facts were that the appellant on 14-4-1966, filed an application under section 4 of the 1959 Ordinance for the fixation of fair rent in respect of a piece of land taken on lease by him from the Lyallpur Improvement Trust, respondent, for use as bus-stand. The Rent Controller at Lyallpur accepted the application and reduced the rent from Rs. 1,000 to Rs. 150 p.m.
The respondent preferred an appeal against the order of the Rent Controller which was accepted by the Additional District Judge, Lyallpur, on the ground that the property in dispute stood exempted from the operation under section 3 of the 1959 Ordinance, by the Notification issued on 27-10-1 67. Saad Saood Jan, J., after referring to the following cases, observed at page 171 of the report as follows :- Muhammad Amir Khan v. Muhammad Khalil (5), People's Bank v. Wahid Bakhsh (6), Saeed. Ahmed v. State (7), State v. Shaft (8), Fazlur Rahman v. {{FOOT NOTE}}
(1) PLD 1978 Kar. 132 (2) 1983 CLC 2228
(3) 1974 L N 486 (4) 1979 CLC 170
(5) AIR 1947 Lah. 180 (6) A 1 R 1943 Lah. 170
(7) PLD 1964 SC 266 (8) PLD 1960 Lab. 236 {{FOOT NOTE}} ' Abdul Rashid (1), Jamil v. Sultan Mahmood Khan (2), Tiansocean Asia v. Secretary The Government of Pakistan (3) and Muhammad Amir Khan v. Controllers' of Estate Duty (4) :- "These authorities reiterate the accepted rule that normally a stature is not to be construed retrospectively so as to take away vested rights, or affect proceeding at the time of its enactment.
However, two of these authorities are worthy of notice. In People's Bank v. Wahid Bakhsh A 1 R 1943 Lah. 170 certain properties were attached during the course of execution of a decree. Before these properties could be auctioned the Punjab Relief of Indebtedness Act was enacted. Section 35 of the Act exempted certain types of the property from attachment. A question arose if this section had any effect on the attachment already made. It was answered by a Full Bench in the negative and it was held that this section did not have any retrospective operation and as such could not affect the pending proceedings. In Muhammad Amir Khan v. Muhammad Khalil A 1 R 1947 Lah. 180, a District Magistrate issued a notification under the Defence of India Rules, preventing the ejectment of tenant so long as they paid the rent and were in the opinion of the District Magistrate good tenants. It was held that this notification did not hit the pending suits for ejectment.
' The principle is quite clear that a statute unless it expressly provides is not to be construed in a manner so as to affect proceedings which were pending at the time of its enactment. This principle is fully applicable to notifications issued under a statutory authority. I am therefore, in agreement with the learned counsel for the appellant that the notification by which the properties vesting in the Improvement Trust were taken out of the purview of the West Pakistan Urban Rent Restriction Ordinance did not affect the proceedings which had already been situated and were pending disposal."
32. In the first named case the question was also looked from another angle. It was assumed therein that the notification had the effect of repealing the Ordinance in its application to the properties covered by the notification but then it was held that under section 4 of the Provincial General Clauses Act, 1956 in the absent of different intention appearing in the present Act, the repeal did not affect the proceedings then pending before the Controller. The relevant provisions of section 4 of the General Clauses Act, 1956, read as follows : "4. (1) Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal shall not-
(a) . . .
(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) . . .
(e )affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or {{FOOT NOTE}}
(1) PLD 1967 Lab. b28 (2) PLD 1966 Pesh. 43
(3) PLD 1967 Pesh. 445 (4) PLD 1962 SC 335 {{FOOT NOTE}} ' punishment as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act has not been passed."
' I may however, state the relevant facts of this case. In this case a notification was issued under section 3 of the 1959 Ordinance exempting the properties belonging to a local body administering an urban area, which were used as shops and were of commercial nature from the operation of the Ordinance. The Additional District Judge applied the notification to the pending proceedings and dismissed the same. Before the learned Judge amongst other the following authorities were cited Burmah Oil Co. Ltd. v The Trustees for the part of Chittagong (1), Sh. Rehmatullah v. The Deputy Settlement Commissioner Centre "A" Karachi and others and Sh. Afzal Ahmed v. Raja Ziaullah Khan and another. The learned Judge, after referring to the above cases and relying on the case of Sardar Mohindar Singh v. Arur Singh and others (2), observed that he was of the view that the notification issued in 1962 could not effect the proceeding before the Rent Controller. In AIR 1922 Lah. 344, the facts were that a notification was issued by the Punjab Government under section 8(2) of the Punjab Pre-emption Act during the pendency of the suit for pre-emption. Under this notification it was declared that no right of pre-emption shall exist in respect of agricultural land and village immovable property within the area in which the plots in that suit were admittedly situated. It was held that this notification could not apply or have no effect on the pending suits. It was further observed that a notification could not have a greater effect than a repealing Act for the purpose of causing the dismissal of all pending suits to enforce pre-existing rights of pre-emption.
33. Following the above-quoted high authorities I am of the opinion that the notification could not be applied retrospectively so as to affect pending proceeding. It could operate only prospectively.
34. I may mention that Mr. S. M. M. Naqvi heavily relied on Sh. Khushi Muhammad and 30 others v.
Anjuman Himayat-i-Islam, Lahore (3). In this case notification under section 3 exempting Anjuman's properties from the operation of 1969 Ordinance was questioned on the ground that it deprived the tenant of the respondents' properties of rights inhering them under the Ordinance. But this contention was repelled holding that the whole object of the impugned notification was to restore normal rights of ownership to the respondent by doing away with the encumbrances created by the Ordinance against the full enjoyment of its property by the respondent. It was however, observed as follows :- "It is important to bear in mind, that these encumbrances in favour of the tenants are creation of the statute, which the statute itself abolishes or gives the executive the power to abolish in certain cases. On that view of the matter, therefore, the effect of the notification is not to deprive the appellants of any right inhering in them with reference to the property, but only to restore what is otherwise a normal incident of ownership under section 107 of the Transfer of Property Act, 1882."
' But in this case no action was pending or any right or vested right had {{FOOT NOTE}}
(1) PLD 1961 SC 452 (2) AIR 1922 Lah. 34
(3) PLD 1975 SC 54 {{FOOT NOTE}} ' accrued to the tenants or to the landlord namely, Anjuman Humayat-i-Islam Therefore, this case is of no help to Mr. S. M. M. Naqvi.
36. Now, taking up the second point raised by Mr. Wajihuddin Ahmad who relying on section 27 of the Ordinance submitted that the power under section 3(2) of the 1959 Ordinance have not been saved. In this connection he relied on Abdul Rahman v. Haji Mir Ahmad Khan and another (1), which was approved by the Supreme Court by the judgment reported in PLD 1983 SC 21. However, in my view the question does not arise for it is nobody's case before me nor has it been urged by S. M. M.
Naqvi or Mr. Muhammad Ibrahim Memon, Additional Advocate-General Sind that the Government exercised powers under section 3(2) of the 1959 Ordinance nor it could be the case of the respondent as the 1959 Ordinance including section 3 thereof stood repealed by virtue of section
(1) of 1979 Ordinance.
36. For the reasons given above I set aside the orders impugned in these appeals and remand the cases for deciding the same in accordance with law. In the circumstances of the case however, I leave the parties to bear their own costs.