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Civil Revision No. 99 of 1966, decided on 25th January 1967.

Art. 30(10)‑Proceedings in substance raising question of enforcement or infringement of any fundamental right‑Remain suspended during period of Emergency.

, Art. 6, Fundamental Right No. 15‑All laws need not apply to all citizens‑All citizens need not have same rights and liabilities‑Reasonable classification with regard to operation of laws not prohibited.

G. Safdar Shah for Applicants.

Ajmal Mian for Respondents.

Dates of hearing:26th September and 3rd October 1965.

This revision application has been brought by the heirs of Saleh Muhammad H. K. Dada against the order dated 24‑3‑1966, made in a civil Miscellaneous Appeal by Mr. A. G. Muhammad Ali, Chief Judge, Small Causes Court, Karachi, exercising powers of Additional District Judge allowing Civil Misc. Appeal No. 284 of 1964. The question raised is whether this appeal and the applicants' Suit No. 225/1964 involved any question as to the infringement of fundamental rights guaranteed by the Constitution and should, therefore, have remained suspended for the duration of the proclamation of emergency.

2. The dispute between the parties relates to plot No. E‑5, measuring 2637 sq. yds., and situate at Thal Produce Yard, Karachi. This plot was let out by the respondent, namely, the Trustees of the Port of Karachi, to Saleh Muhammad H. K. Dada by a lease deed dated 3‑TO‑1958 for the term which ended on 31‑3‑1964. Saleh Muhammad H. K. Dada raised some structure on this plot and used it for purposes of his export business. On his death on 4‑7‑1959, the rights under the lease were inherited by the present applicants. On 7‑4‑1964, that is, after the expiry of the lease, the respondents served a notice on the applicants under section 3 (1) of the Port Authorities Land and Buildings (Recovery of Possession) Ordinance, 1962. This section provides that if a lessee of any land or building belonging to a Port Authority refuses or fails to vacate such land or building on the expiry or determination of the lease then, notwithstanding anything contained in any contract or in any other law for the time being in force, such Port Authority may by notice in writing require such lessee to vacate and deliver vacant possession of such land or building. If there is failure to comply with such a notice, the Port Authority may make a complaint to the Authorized Officer under section 4 of the Ordinance who, after notice to the lessee, and after giving him a bearing, may make an order either permitting the lessee to continue in occupation of the land or building or direct him to vacate and deliver to the Port Authority vacant possession thereof. If this direction is not complied with, the Authorized officer is empowered to enter upon the land or building and to evict the lessee in occupation by such force as may be necessary.

3. Upon receipt of the notice under section 3 of the Ordinance, the applicants filed Suit No. 225 of 1964 in the Court of the Additional Civil Judge, First Class, Karachi for declara tion that the said notice was without jurisdiction, ultra vires and a nullity, and for permanent injunction to restrain the respondents from interfering with the applicants' possession of the said plot. The trial. Court granted an interim injunction to this effect on 6‑2‑1964 on an application under Order XXXIX. C. P. C. The interim injunction was confirmed by order dated 6‑7‑1964.

4. The respondents challenged the grant of temporary injunc tion by appeal before Mr. Hamid Ali Memon, Additional District Judge, Karachi. It is the case of the applicants that at the hearing before Mr. Hamid Ali Memon on 23rd April 1965, they raised the question of the vires of the Port Authorities Land and Buildings (Recovery of Possession) Ordinance, 1962, and contended that this Ordinance was of ex-proprietary character and offended the fundamental rights guaranteed by the Constitution and was, therefore, inconsistent with Articles 2 and 6. of the Constitution. This plea, it is stated, was not raised in writing, but only in the argument of counsel at the hearing of the appeal. On the transfer of Mr. Hamid Ali Memon from Karachi, the appeal came before Mr. A. G. Muhammad Ali, Chief Judge, Small Causes Court, Karachi on 19.3‑1966. On this date, the applicants made an application under section 151, C. P. C. stating that they had raised before Mr. Hamid Ali Memon the question of the vires of the said Ordinance and pointed out that in view of the proclama tion of emergency promulgated by the President on 6‑9‑1965, under Article 30 of the Constitution, and in view of the provisions of the Constitution (Fifth Amendment) Act, 1965, the appeal and the suit, which both related to the question of the vires of the Ordinance, stood suspended. The learned Judge, however, took the view that this plea was taken neither in the plaint in suit, nor in the memorandum of appeal and, therefore, the appeal could not be deemed to be a proceeding for the determination of any question as to the infringement of the fundamental rights. Upon this view and upon the findings that the applicants had failed to substantiate the contention that the notice under section 3 of the Ordinance was without jurisdiction, the conclusion was reached that by reason of the provisions of section 9 of the Ordinance the Civil Courts were not competent to question any act duly done under the Ordinance. Accordingly, the respondent's appeal was accepted and the temporary injunction granted by the trial Court was vacated.

5. The order of the lower Appellate Court is contested before me by Mr. G. Safdar Shah, the learned counsel for the applicants, on the following two grounds :‑---

(1) that the applicants sought in Suit No. 225 of 1964, determination of the vires of the Port Authorities Lands and Buildings (Recovery of Possession) Ordinance, 1962, which, in the submission of the learned counsel, was inconsistent with the fundamental rights guaranteed by the Constitution and accordingly both these proceedings should have been treated as suspended for the duration of the emergency.

(2) that the plea as to the suspension of these proceedings was raised by way of a preliminary objection and the lower Appellate Court acted in error in accepting the appeal and setting aside the order of interim injunction without hearing the applicants on the merits of the case.

6. Mr. G. Safdar Shah takes his stand on fundamental right No. 15, which gurantees that all citizens are equal before law and are entitled to equal protection of law. It is pointed out that the Port Authorities Lands and Buildings (Recovery of Possession) Ordinance provides for summary eviction of tenants of lands and buildings belonging to a Port Authority on the expiry or deter mination of their leases, whereas under the West Pakistan Urban Rent Restriction Ordinance, 1959, a tenant, notwithstanding the expiry or determination of his lease, is protected from eviction except by an order of the Rent Controller made on any of the grounds specified in section 13 of this Ordinance. Thus, the lessees of the Port Authorities do not have the' same protection against eviction as is enjoyed by tenants of other landlords under the Rent Restriction Ordinance. It is accordingly urged that the provisions of the Port Authorities Ordinance are discriminatory and in violation of the guarantee of equal protection of laws, and that to this extent the Ordinance is void under Article 6 of the Constitution, and it being so, the applicants' suit in the Court of the Additional Civil Judge, and the respondent's appeal before the Additional District Judge, did involve a question as to the infringement of the right to equal protection of laws and should have been treated as suspended in view of the proclamation of Emergency and the order of the President suspending the right to move the Court for enforcement of fundamental rights. This order of the President finds sanction in sub‑Article (10), added to Article 30 of the Constitution, by the Constitution (Fifth Amendment) Act, 1965. The sub‑Article is in the following words:‑-

"While a Proclamation of Emergency is in force, the President may, by order, declare that the right to move any Court for the enforcement of such of the fundamental rights conferred by Chapter I of Part II of this Constitution as may be specified in the Order, and any proceeding in any Court which is for the enforcement, or involves the determination, of any question as to the infringement of any of the rights so specified, shall remain suspended for the period during which the proclamation is in force, and any such order may be made in respect of the whole or any part of Pakistan."

7. The view is not contested that under Article 30 (10) of the Constitution, both the right to move, as well as proceedings pending in the Courts remain suspended for the duration of Emergency if au order to this effect is made by the President. It is also not necessary in these proceedings to resist the suggestion that in the proceedings so remain suspended, the question of enforcement or infringement of fundamental rights need nut have been specifically raised in the pleadings of the parties, but may have been brought before‑ the Courts only in arguments of counsel. The question which however, requires answer is whether legal proceedings must of necessity be stayed whenever a party chooses to say to the Court that his case is concerned with the enforcement or infringement of a fundamental right, without any further enquiry into the substance of this plea. I decline to subscribe to Mr. Safdar Shah's proposition that no enquiry is permissible as to the prima facie existence of such a question, and, that the only course open to the Courts is to treat the proceedings as suspended. If this view is acceded to, the Courts may be faced with stoppage of all judicial work. I do not think that Article 30(10) is intended to be interpreted in this fashion which, if not absurd, would at least lead to inconvenient results I will not be violating the intendment of this provision of the Constitution if I say that only proceeding which in substance raise the question of enforcement or infringement of any funds mental right shall remain suspended during the period of Emergency.

8. It has, therefore, to be seen whether the suit of the applicants in the Court of the Additional Civil Judge, or the respondents' appeal before the Additional District Judge, were substantially for the purpose of. determining any question with regard to infringement of any fundamental right. It has been noted above that the suit by the applicants was brought only to challenge the vices of the notice given by the respondents under section 3 of the Port Authorities Lands and Buildings (Recovery of Possession) Ordinance, 1962. No plea as to the void character of the Ordinance itself was either taken in the plaint or in any written objections in the appeal filed by the respondents. But I will assume that this plea was in fact raised, and could be so raised, in the argument of counsel. But I have to see whether there is any substance in this plea. Mr. Safdar Shah's only argument in support of this plea is that the Port Authorities Lands and Buildings (Recovery of Possession) Ordinance, 1962 is void as being inconsistent with the guarantee of equal protection of laws to the extent that it deprives rise tenants of Port Authori ties of the protection of the West Pakistan Urban Rent Restriction Ordinance. But I do not think that Fundamental Right No. 15 can be used to mean that all laws must 'apply to all citizens, or that all citizens must have the, same Fights and liabilities. The guarantee contained in this right is only this that no person or class of persons shall be denied the same protection of law which is enjoyed by other persons, or other classes in like circumstances. The guarantee does not prohibit reasonable classification with regard to the operation of laws.

9. The further point which has to be considered is whether the West Pakistan Urban Rent Restriction Ordinance can be taken into consideration to decide the validity of the Port Authorities Lands and Buildings (Recovery of Possession) Ordinance, 1962. The two laws are made by two different Legislatures the Port Authorities Lands & Buildings (Recovery of Possession) Ordinance is a Central Law, whereas the West Pakistan Urban Rent Restriction Ordinance is a Provincial Law. It is not permissible, for the purpose of deciding whether guarantee of equal protection of laws has been violated, to read together a Central Law and a Provincial Law, or laws made by the two Provincial Legislature, and by comparison or contrast to Judge that the provisions of the one or the‑ other are discriminatory. The power of the Court has to be exercised under Article 6 and Fundamental Right No. 15 with reference to the specific legislation which is impugned or, possibly, several legislations on the same subject enacted by one Legislature. It is not open to make a comparative study of provisions of laws which have different legislative sources and to strike down one law on the ground that in contrast with the other law its provisions are discriminatory. No objection can, therefore, be taken to the Port Authorities Lands and Buildings (Recovery of Possession) Ordinance on the ground that its provisions, in comparison with the West Pakistan Urban Rent Restriction Ordinance, 1959, are less favourable for the tenants and, therefore, discriminatory an inconsistent with the Fundamental Right No. 15. Accordingly, it is not possible to take the view that the applicants' suit and the respondents' Civil Appeal before the Additional District Judge raised any substantial question with regard to the infringement or enforcement of any of the fundamental rights guaranteed by the Constitution and therefore for this reason should have been treated as suspended for the duration of Emergency.

10. The second contention of Mr. Safdar Shah, namely, that the impugned order of the Additional District Judge was made without hearing the applicants on the merits of the case, is also without force. From the impugned order, it appears that an opportunity was given to the applicants to argue their case on merits also. It is stated in the order that‑---

"Mr. Safdar Shah (counsel for the applicants before the Additional District Judge) preferred not to argue on the merits of the case in support of the injunction being continue against the appellants (the present respondents)."

Notwithstanding the applicants' reluctance to address the Court on merits, the Additional District Judge did go into this question and his views thereon are given in paragraph 14 of the judgment. The applicants' suit was brought on the basis that the notice of eviction issued by the respondents in April 1964, was ultra vines of the Port Authorities Lands and Buildings (Recovery of Possession) Ordinance. But the Additional District Judge found that the applicants had failed to show any legal defect in this notice and he, therefore, reached the conclusion that this notice was validly issued by the Traffic Manager of the respondents, who was competent to issue such notices under rule 2 (b) of Karachi Port Trust Authorities Lands and Buildings (Recovery of Possession) Rules, 1963. The learned Judge also rejected the contention, which appears to have been raised before him, and was accepted by the trial Court as the ground for issue of the interim injunction, that no rules were framed under section 11 of the Port Authorities Ordinance and that in the absence of such rules notice of eviction could not be given by the respondents. It was found that these rules were actually made by the Communication Division of the Government of Pakistan on 29‑4‑1963, and were published in the Gazette of Pakistan. on 10th may 1963. With regard to the submission in the plaint that the applicants' were protected from eviction under the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959, under which they became tenants from month to month on the expiry of the term of their lease, it was held that Port Authorities Ordinance, being a Central Law would, under Article 134 of the Constitution, prevail over the West Pakistan Urban Rent Restriction Ordinance, 1959, which is a Provincial Law.

11. I cannot, therefore, agree with Mr. Safdar Shah that no opportunity was given to the applicants by the lower Appellate Court to make their submissions on the merits of the case. However, when the case was argued before me, I indicated to the applicants that they were at liberty to argue the merits of the case. But the applicants' learned counsel again preferred not to touch this aspect of the case and was unable to point out any fallacy in the views expressed in the impugned order on the merits of the case. I am, therefore, unable to accede to the plea that the impugned order should be set aside because it was made without hearing the applicants on the merits of the case.

12. For the reasons discussed above, I am of the view that this revision application should fail and is, therefore, dismissed with costs.

K. M. A . Application dismissed.

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