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First Appeal No. 33 of 1950, decided on 6th December 1955.

, S. 15 (1) Direction by Rent Controller to landlord to let certain premises ‑Act followed by Ordinance viz. Karachi Rent Restriction Ordinance (I of 1953)‑Ordinance in its turn repealed by Karachi Rent Restriction Act (1111 of 1953)‑Direction, held, continued to be alive after repeal of Ordinance‑General Clauses Act (X of 1897), S. 6‑Application to Ordinance.

Under section 15 (1) of Sind Rent Restriction Act (X of 1947), the Rent Controller issued a direction to the owner of certain premises to let a part of the premises to the defendant. Appeal from the Controller's order was dismissed; and a revision petition was also dismissed. The direction was issued and the appeal and revision were decided when the original term of the Act had already expired but the Act had been given extended operation by a Government Notification for which provision had been made in the Act. This extended operation, however, was pronounced to be illegal by reason of the Federal Court Judgment in Sobho Gyanchandani,s case (P L D 1952 F C 29) Accordingly, the Central Government promulgated the Karachi Rent Restriction Ordinance (I of 1953) which was followed by the Karachi Rent Restriction Act (VIII of 1953).

The Ordinance was made to take effect immediately on the expiry of the original term of the 1947 Act and section 15 (1) of the Ordinance which related to the issuing of directions as to allotment of premises was identical with section 15 (1) of the Act of 1947 and all acts done or deemed to have been done under the latter Act were recognised as valid under the Ordinance. The Act which followed the Ordinance, however, repealed the Ordinance and the provisions of section 15 (1) of the Ordinance were omitted from the Act.

On a suit by the landlord against the defendant allottee in respect of the premises, held, that section 6 of the General Clauses Act (X of 1897) which provided that repeal shall not affect the previous operation of any enactment repeated, or anything duly done thereunder, applied to an Ordinance but even if it did not apply, the transaction being past and closed, the intention of the Ordinance was to keen alive the Controller's order. The fact that the defendant had not yet obtained possession of the premises was no ground for holding that the transaction was not past and closed.

Steavenson v. Obair, (1841) 8 M & W 234, Surtces v. Ellison (1829) 9 B & C 750 and Bansgopal v. Emperor A I R 1933 All. 669 ref.

Crown v. Haveli A I R 1949 Lah. 191 = P L D 1949 Lah. 550 commented and distinguished.

, Ss. 2 (6) and 15‑Premises occupied by owner‑Not "vacant"‑Act must be strictly construed.

When any premises are occupied by the owner or are transferred by one owner to another by sale, the premises cannot be deemed to be vacant.

The definition of "premises" in section 2 (6) is defective in language for it shows that even if the owner has never let a house and has kept it in reserve, although he himself is living elsewhere, he could not be directed to let it by the Controller.

The Act curbs the right of the owner to deal with his property as he chooses and should, therefore be construed so as to confine its operation to the barest minimum justified by its plain words.

Lachhman Das v. Rent Controller A I R 1953 All. 458 ref.

Noorul Arfeen for Appellant.

A. S. Faruqi for Respondent.

Nasir‑ud‑Din for Karachi Administration.

---‑This is an appeal from a decision of Mr. Justice Hasan Ali Agha, dismissing the plaintiff's suit for the possession of a house described as Hiranand‑Notandas. Building, situate on Outram Road, Karachi. The building in question originally belonged to a joint Hindu family whose manager was Chelaram‑Hiranand. It was alleged by the plaintiff that on the 20th September 1948, Chelaram had agreed to sell the house to him by document Exh. 8 and that the sale deed Exh. 9 was actually executed on the 17th November 1948. The plaintiff claimed to have been in possession of three out of four rooms of the flat on the first floor since 1st June 1948 as a tenant and the fourth room was occupied by him on the 21st September 1948, the day follow ing the execution of the agreement to sell.

On the 9th of October 1.948, the defendant applied to the Rent Controller for a direction to the owner under section 15 (1) of the Sind Rent Restriction Act, (X of 1947), that two of the four rooms in the flat should be let to the defendant. At this stage it would be convenient to leave alone the allegations of the plaintiff and state the facts as they have been found by the Judge in Chamber and apparently admitted before us by counsel for the plaintiff. The applica tion of the defendant was referred to a Ward committee which submitted its report on the 10th of October 1948 (Exh. 19). It was to the effect that the flat was 'in occupa tion of Chelaram who had expressed to the committee an intention of selling it to some intending purchaser who had not yet been found. As the committee thought that Chelaram intended migrating to India, it suggested that a notice be issued to him not to leave the premises without information to the Controller. In pursuance of this suggestion, the Controller issued a direction on the 9th of November 1948 of which two copies, Exhs. 11 and 20, somewhat different in purport, are on the file. According to Exh. 11, the landlord was directed under section 15 of the Sind Rent Restriction Act (X of 1947) to let to the defendant two rooms on the top floor after they were vacated by the family. Accord ing to Exh. 20, the direction was to let the rooms with effect from the 16th of November 1948, on which date they shall be vacated by the landlord. There is yet a third direction, Exh. 21, issued on the 13th of November 1948, apparently in pursuance of some incorrect information. This direction is under subsection (3) of section 15 and is therefore, to the "occupant" of the flat requiring him to vacate the premises as he was in unauthorised possession. It is on record that this direction was served on Chelaram on the 15th of November 1948.

Against the order of the Controller, the plaintiff appealed to the Collector but the appeal was dismissed on the 25th o1 November 1948 (Exh. 12). Next, he filed a revision petition to the Administrator and this was dismissed on the 8th of December 1948 (Exh. 13). This was followed by the present suit which was instituted on the 19th of July 1949. It should be stated here that the defendant has not so far obtained possession of the premises allotted to him by the Controller, apparently by virtue of a stay order from the Court.

Two points in the main were argued before us. The first was that the Controller's order was made after the expiry of the Sind Rent Restriction Act of 1947 and that subsequent enactments have not succeeded in validating it. The second was that the Controller had no jurisdiction to make an order under section 15 (1) of the Act.

As regards the first point, it was pointed out that by section 1 (5), the Act was to‑remain in force for a period of one year from its commencement that is to say, the 28th of March 1947, but the Provincial Government could by notifica tion extend its operation for successive periods of one year at a time. In pursuance of this power, the Act was extended for another year and for yet another year. In the meantime, the Federal Court held in Sobho Gyanchandani's case (P L D 1952 F C 29) in. respect of a similar provision for extension in the Public Safety Act that as this amounted to delegated legislation, the provision was to that extent ultra vires Following the law thus laid down, the Sind Chief Court held in Mufti Masroor Ahmad v. R. M. Mithani (P L D 1953 Sind 20) that the Sind Rent Restriction Act of 1947 was not in force after the 28th of, March 1948. and it is not denied that this decision was correct. Accept ing this position, the Central Government promulgated Ordinance I of 1953, the Karachi Rent Restriction Ordinance, on the 24th of February 1953. This was followed on the 15th of April 1953 by the Karachi Rent Restriction Act (VIII of 1953). The Ordinance provided that it shall be deemded to take effect on the 28th of March 1948. Section 15 (1) of the Ordinance which relates to the allotment of premises by the Controller is identical with section 15 (1) of the Act of 1947. Section 29 (2) of the Ordinance stated that "every order made or deemed to have been made or act done or deemed to have been done by any officer or authority acting or purporting to act in exercise of the powers conferred by the Act shall be deemed to have been made or done by such officer or authority under the corresponding provisions of this Ordinance", the Act being the Act of 1947. A further precaution was taken by providing in section 32 (1) that "any order or rule made under the Act or purporting to be made thereunder after the 27th day of March 1948 shall, in so far as it is not inconsistent with the provisions of this Ordinance, be deemed to have been made under the provisions of this Ordinance and shall have effect accordingly".

It is admitted that the order of the Controller allotting the premises to the defendant on the 11th of November 1948 was made valid by the Ordinance. It is argued, however, that since the Ordinance was a temporary measure, and since in the Karachi Rent Restriction Act of 1953 there was no provision corresponding to section 15 of the Act of 1947 or the Ordinance, the order of allotment expired with the Ordinance. Section 15 of the Act of 1947 provides "When the Controller receives intimation under section 13 or section 14 or otherwise receives information that any residential premises are vacant or about to become vacant, he may direct the landlord to let the premises when they become vacant or, if the premises are vacant, the vacant premises to a person or persons specified in such direction". It is true that there is no corresponding provision in the Act of 1953 which merely concerns itself with the regulation of rent and the ejectment of tenants. There are saving provisions in sections 25 and 28 of the Act but they seem to have followed previous models in phraseology, apparently without consider ing the effect which the deletion of section 15 of the Act may produce. Section 25 says in subsection (2), with reference to the Act of 1947 and the Ordinance of 1953, that "every order made or deemed to have been made or act done or deemed to have been done by any officer or authority acting or purporting to act in exercise of the powers con ferred by the said enactments shall be deemed to have been made or done by such officer or authority under the corres ponding provisions of this Act", while section 28 (1) provides : "Any order or rule at any time made or purport ing to have been made under any of the said enactments shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been made under the provisions of this Act and shall have effect accordingly". Now, since there is no provision in the Act of 1953 for a direction by the Controller, such as could have been made under section 15 of the older enactments, the order of the Controller which was made under section 15 of the Act of 1947 is not saved.

In normal course, the Ordinance of 1953 would have expired within six weeks of the meeting of the legislature unless re‑enacted during that session as an Act of the legislature. It was re‑enacted on the 15th of April 1953 and section 29 thereof repealed the Ordinance of 1953. We have, therefore, to see the effect of this repeal and we naturally think of section 6 of the General Clauses Act of 1897.

Section 6 of the General Clauses Act, 1897, so far as relevant, provides that where any Central Act repeals any "enactment", then, unless a different intention appears, the repeal shall not affect the previous operation of any enact ment so repealed or anything duly done or suffered there under, or any right acquired ; and it is clear that if section 6 applies, the order of the Controller continues to be alive. It is contended, however, firstly, that section 6 applies to permanent statutes ; secondly, that it does not apply if the repealed legislation is replaced ; and thirdly, that even if it applies to temporary statutes, then "a different intention appears" from the new Act in so far as it omits section 15 of the old Act. On the assumption that section 6 applies, I do not think the omission of the provision empowering the Controller to issue directions indicates any intention that whatever was done by him in the past should also be annulled. This would lead to manifest confusion.

A number of cases were brought to our notice, and as they all take us back to first principles, rather than recapi tulate the arguments propounded in those cases, I would prefer to go back to first principles. They are enunciated in different books, but I reproduce them from Craies on Statute Law, fifth edition (1952).

1. "Every statute for which no time is fixed is called a perpetual Act, and continues in force until it is repealed". (p. 374). An Ordinance is, therefore, not a perpetual Act.

2. "There is a difference between temporary statutes and statutes which are repealed ; the latter (except so far as they relate to transactions already completed under them) become as if they had never existed ; but with respect to the former, the extent of the restrictions imposed, and the duration of the provisions : are matters of construction". (p. 378). These remarks are reproduced from Steavenson v. Obair ((1841) 8 M & W 234), which related to a temporary Act, providing that every person holding a commission as surgeon in the army should be entitled to practise as an apothecary without passing the usual examination. After the expiry of the Act, it was contended that such surgeons lost their right, acquired under the Act, to practise as apothecaries. It vas held that the right so acquired was not lost. "The Act provides that persons who hold such commissions should be entitled to practise as apothecaries, and we cannot engraft on the statute a new qualification limiting that enactment.

3. "When an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed". (p. 380) Tindal C. J. in Surtces v. Ellison ((1829) 9 B & C 750).

4. "If a right has once been acquired by virtue of some statute, it will not be taken away by the repeal of the statute under which it was acquired". (p. 383).

There are fundamental doctrines upon which the Courts in England acted before the Interpretation Act of 1889 came into force. If a right has once been acquired, whether under a temporary or a perpetual enactment, it is not taken away by repeal or lapse. Another way of expressing the same thing is to say that transactions past and closed are not affected. Whether, therefore, the General Clauses Act applies or does not apply to a case, a completed transaction under a repealed or lapsed enactment is an accomplished fact. Another thing to notice is that as regards temporary statutes, "the extent of the restrictions imposed, and the duration of the provisions are matters of construction". We cannot construe the Ordinance of 1953 to mean that the orders purporting to have been passed under the Act of 1947 were to be kept alive only until the Ordinance lapsed. The orders were obviously intended to be kept alive permanently, and it was only the provisions for the future which would die if the Ordinance were not substituted by an Act of the Legislature. Upon the plain intention of the Ordinance, therefore, I hold that the Controller's order remains in force notwithstanding its repeal.

Then, reverting to section 6, General Clauses Act, I do not find any restriction in the words "where . . . . . any Central Act . . . . . repeals an enactment" so as to confine the word enactment to perpetual Acts. To enact is "to make into law as by legislative act", (Standard Dictionary), to establish by law" (Black's Law Dictionary) and an "enactment" is a law enacted". How it can be said that an Ordinance is not a law enacted I was referred to a Rangoon case (1941 Rang. 5) where it was pointed out that an Ordinance was not an enactment because section 42 of the Government of India Act spoke of it as being "made and promulgated", and I hope I was not wrong when I replied that this was like building a vast structure on frail foundations. It will be noticed that section 42 occurs in Chapter IV, which is entitled: "Legislative Powers of the Governor‑General". To promulgate merely means to publish or to announce officially, "to make public as important or obligatory" (Black). In England, an Ordinance was distinguished from a statute "by the circumstance that the latter required the threefold assent of King, lords and commons while an Ordinance might be ordained by one or two of these constituent bodies." (Black). It was meant to be brought here with the same harmless intention, and it is a different matter that Ordinances were sometimes promulgated here with a crash, so that a sinister meaning came to be attached to them.

It is true that in Crown v. Haveli (A I R 1949 Lab, 191=P L D 1949 La h. 550) which was decided by a Full Bench, Cornelius J., who wrote the main judgment, did make an observation which lends colour to the argument that section 6 can be applied only to a permanent statute, but a reading of the entire judgment shows that the decision was influenced by the first principles already referred to, and in those principles there is nothing to justify this crystallized conclusion. It was a case where the Punjab Disturbed Areas Act (which being a Governor's Act was a temporary measure) had been applied to Sialkot district by a notification for which the Act provided, and the notification having been subsequently withdrawn, the question was whether an offence committed before withdrawal could be tried under the Act after its withdrawal from the district. It was pointed out that since the Act was a temporary measure, it could not have been intended to apply its provisions even after repeal ; secondly, that a withdrawal of a notification cannot be regarded as a repeal of an enactment; thirdly, since penal liabilities were involved, it was necessary that any provisions which purported to extend these liabilities beyond the date on which they expired under the ordinary law, should be applied with strictness ; fourthly, the general law as to temporary statutes was that upon expiry they cease as though they never had been, except as to transactions past and closed. (As to this last rule, I say with respect that this applies to permanent statutes also upon repeal.) All these considerations resulted in the decision that section 6 is inapplicable to temporary statutes.

But Cornelius J. reproduced the following passage from the judgment of Darling J. in R. v. Ellis (A I R 1933 All. 669)

"No doubt there is some ground for saying that in cases of this kind, where one is dealing with a temporary Act (and I think this is all temporary legislation, though I do not know that there is much in the term), one must look at the particular statute and see what is the meaning of it. It may be drawn in such a way that some parts of it will survive and be operative and that the other parts of it are dead and gone, and this can only be ascertained by looking at the words of the particular statute which is before the Court."

And I do not see how it can be said that a temporary statute is on a different footing, if in either case you have to see whether the words show that some parts survive and others die. And I, therefore, respectfully say with Darling J. that I do not know that there is much in the term "temporary".

It is important to note that Munir C. J , while agreeing, confined himself to only one argument. He observed that the Crown counsel had conceded that the case was not covered by section 4 of the Punjab General Clauses Act or section 6 of the Central Act "as it is not a case of one Punjab Act or Central Act repealing another," for only a notification had been withdrawn.

It is, therefore, suggested, with respect, that the observa tions in Haveli's case that section 6 does not apply to temporary statutes should be confined to its own facts. On those facts, the case could have been decided without laying down a general principle.

The appellant's counsel also relied on another Full Bench case, Bansgopal v. Emperor (A I R 1933 All. 669), from which Cornelius J., has reproduced a passage in approval. The following passage from the judgment of Sulaiman C. J., in the same case, however, makes it clear that the Full Bench held section 6 to be applic able to Ordinances:

"Section 30, General Clauses Act, as subsequently amended, now makes the Act applicable not only to the Acts of the Governor‑General, but also to the Ordinances made and promulgated by the Governor‑General under the Govern ment of India Act. Thus the General Clauses Act would certainly be applicable to the two Ordinances (Ordinances II and X of 1932) in question, but section 6 is applicable to a case where a previous Ordinance has been repealed' by a subsequent Ordinance or by a subsequent Act and would not necessarily apply to a case where a temporary Ordinance automatically expires after the period during which it is in operation is over".

I, therefore, hold that section 6 applies to an Ordinance but even if it did not apply, the transaction being past and closed, the intention of the Ordinance is to keep alive the Controller's order. The argument that since possession has not so far been delivered to the defendant, the transaction is not past and closed, presumes that the institution of a suit for possession is also a part of the scheme of the Rent Restriction Act, 1947. The special object of the Act, so far as section 15 goes, was to empower the Controller to give a direction as to letting and the direction was finalised by the rejection of appeal and revision.

The second contention of .the learned counsel is very substantial. He says that the Controller had no jurisdiction to pass an order because, firstly, the house which the appel lant purchased was not "premises" within the meaning of section 2 (6), secondly, there were no "vacant" premises to let. The letting order was made on 9th November 1948, and the previous owner was admittedly in occupation till 17th November 1947, (para 3 of the written statement).

Section 2 (6) defines "premises" to mean "any building or part of a building let for any purpose . . . . . "It is assumed that the building has been let already, not that it is capable of being let. The farthest extent to which I can stretch the meaning is that it is a building which the landlord generally lets, but I cannot bring myself to hold that even it the owner has never let a house and has kept it in reserve although he himself is living elsewhere, he could be directed to let it "whereas" it is the pleasure of the Rent Controller. The Act itself curbs the right of the owner to deal with his property as he chooses and should, therefore be construed C so as to confine its operation to the barest minimum justified by its plain words. It may be argued (or was perhaps argued) that if this interpretation is adopted, one of the two contin gencies envisaged by section 15‑when "any premises are vacant"‑will never arise, because if one tenant vacates them, then so long as they are not actually let to another, they will not be treated as "premises" and the Controller will not be able to say that any "premises" are vacant. This argument merely indicates a defect in the language of section 15, but we cannot argue back from a defect to the plain words of a definition. In actual practice the defect will not be noticeable, for when a landlord is in the habit of letting, if the premises are vacant between two lettings, the meaning of the word "let" relaxes.

Secondly, I do not see how any premises can be regarded as vacant when they are occupied by the owner. The word "vacant" has no technical meaning, though a special meaning became attached to it by the insertion of subsection (4) in section 15 (see Act XXVI of 1948)

Section 15, Subsection (4).‑--For the purposes of this section so much of any premises as is, in the opinion of the Controller, occupied in excess of the reasonable needs of the tenant shall be deemed to be vacant."

It was not provided that it shall be deemed to be vacant if it exceeded the needs of the owner or if the owner intended to sell it.

Although it is unnecessary to cite authority on this point I might refer to Lachhman Das v. Rent Controller (A I R 1953 All. 458), where it was held with reference to a similar provision in the U. P. Temporary Control of Rent and Eviction Act, 1947, that where a person purchases the right of ownership and gets into possession of the accommodation from the previous owner, who was in fact occupying the accommodation for his own purposes, it cannot be said that, at any point of time the accommodation has fallen vacant.

On this ground, therefore, I hold that the Controller's order is beyond jurisdiction, and that the appeal should be accepted and the suit decreed with costs throughout.

‑I agree.

A. H. Appeal accepted

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