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First Appeals Nos. 35 and 42/53 : Reference answered on 8th October 1957.
‑Background of legislation traced from Sind Rent Restriction Act (X of 1947).
, Ss, 2 (6) 15 (1) "Premises"‑"Building let for any purpose"‑Meaning‑Building "once let"‑ falls within definition‑[Karachi Rent Restriction Act (VIII of 1953), S. 2 (5)].
The expression "building let" means a building which is let or was let or has been let or had been let. In other words a building once let falls within the mischief of the definition of the term "premises." After letting out a building for once the landlord may desire to reserve it for his own use ‑but such a desire is immaterial for the purposes of the definition.
The idea of letting contained in the definition does not refer to the suitability or capability of a building to be let. Repeated letting of a building or part of a building does not appear to be necessary.
Where the owner never let out the part of the building which was allotted by the Rent Controller
Held, that the allotment order was void on the ground that the part of the building which it purported to allot was outside the scope of the definition of premises' and as such outside the scope of the Act of 1947.
The word "landlord" in the phrase : (the Rent Controller) "may direct the landlord to let the premises," occurring in S. 15 (1) has reference to "the time of the tenancy" and not to "the time of treating a person as 4 landlord."
Riaz Ahmad Khan v. Muhammad Yusuf Khan P L.D 1956 Kar. 253 ref.
R. B. Andhyarunima : "Principles of Rent Control" (1952 Ed.) page 159.
‑"For the time being" means "tempo rarily."
, S. 2 (9)‑"Vacant" ‑Definition explained‑Building once let but occupied by owner is "vacant."
The words "occupied otherwise than by a landlord or a tenant" used in the definition of vacant' mean that occupation of premises' by any body who does not fall within the definition of tenant' or landlord' is to be disregarded. Premises so occupied are to be treated as vacant for the purposes of the Act (X of 1947). Thus a building which is occupied by the owner, but which falls within the definition of the term premises' by virtue of having been once let would be vacant' premises' available for allotment.
, S. 29 (2)‑Does not validate allotment orders not made in accordance with terms of Sind Rent Restriction Act (X of 1947).
, S. 25 (2)----- Does not validate allotment orders.
, S. 28 (1) Refers to administrative orders rules, etc.,
, S. 29 Repeals earlier relevant enactments without validating orders of allotment passed under any of them.
, S. 29 Repeal of Karachi Rent Restriction Ordinance (I of 1953)‑, Effect on allotments‑General Clauses Act (X of 1897), S. 6----- Application.
Held, that if it is not to be presumed that the allotment orders were validated by Ordinance I of 1953, then such orders continued to be invalid after the passing of the Ordinance but if it is presumed that the allotment orders were validated by Ordinance I of 1953 then such orders remained in operation after repeal of Ordinance I of 1953.
Section 6 of the General Clauses Act deals with the effect of the repeal of a Central Act or Regulation. It does not deal with any other subject. Apart from repeal, there are, however, other ways in which a statute may become defunct. One of them is the expiration of its life, if it is a temporary statute. A permanent Act cannot expire. It may, therefore, be said that section 6 does not deal with the effect of the expiration of temporary Act, but there is nothing in this section to warrant the conclusion that it does not deal with the effect of the repeal of a temporary Act. A permanent statute cannot expire but a temporary st4tute can be repealed and section 6 deals with the effect of the repeal of "any Central Act or Regulation" whether temporary or permanent.
There is an order of precedence in the importance of, directly ascertainable intention of the legislature, the provisions of the General Clauses Act, and general principles of interpretation. First comes the directly ascertainable will of the legislature, then the General Clauses Act and then the general principles of inter pretation. The effect of repeal should be determined according to the provisions of section 6 of the General Clauses Act if the intention of the legislature in this regard is not found, although, the principle of section 6 which is also the will of the legislature expressed generally, would render valuable assistance in resolving ambiguities when an ambiguity can be resolved with the help of a principle. The principles of common law or, to be more accurate, the first principles of statutory interpretation would apply after it is found that neither the intention of the legislature can be ascertained nor section 6 applies, although their great value as guides to the right course at every stage of an enquiry to which they may be relevant is abundantly clear.
Crown v. Haveli son of Ghulam Mudhammad P L D 1949 Lah. 550 commented and distinguished.
Riaz Ahmad Khan v. Muhammad Yusuf Khan P L D 1956, Kar. 253 ; State of Punjab v. Mohar Singh Pratap Singh A 1 K 1955 S C 84 and Haji Adam v. Sufia Qadir P L D 1957 Kar. 100. rej:
M. N. Kotwal for Appellant.
Hafiz Sultan Ahmad for Respondent.
--‑ This is a reference by a Division Bench consisting of Constantine and Wahiduddin, JJ. The order of reference was written by Wahiduddin, J. in which the following four questions were referred to Full Bench for decision :‑
"1. Whether according to the terms of the compromise entered into between the parties on 23rd September 1949‑ the relationship between them was that of a landlord and tenant, or merely that of a licensor and licensee.
2. Whether the allotment order dated 11‑10‑50 was void on the ground that the premises which it purports to affect were (a) outside the scope of the definition of premises and/or (b) outside the scope of the Act.
3. Whether the premises in dispute could be considered to be vacant within the meaning of the definition vacant' in section 2 (9) and within the meaning of section 15 of the Sind Rent Restriction Act 1947)
4. Whether the allotment orders issued under the Sind Rent Restriction Act, 1947 and validated under section 29 (2) of Ordinance 1/53 remained in operation after the repeal of the said Ordinance, under the provisions of the Karachi Rent Restriction Act, 1953, or under section 6 of the General Clauses Act, or under the common law upon which the Courts in England acted before the Interpretation Act of 1889.
The background of the reference is as follows }:
Two appeals were preferred from the judgments of Inamullah, J. in two cross suits namely, Suit No. 260 of 1950 and Suit No. 586 of 1950. They related to the same building. The first one was files by the landlord and the second by the tenant. The building consists of a part of a two‑storied bungalow situated in Somerset Street, E. I. Lines, Karachi. The owner of the bungalow is Nariman Sorabji Kotwal, who was himself occupying the whole of it along with his family. On the 2nd of June 1949, the Rent Controller of Karachi issued an allotment order in favour of Aziz Hasan with respect to the northern half part of the ground floor of this bungalow. Aziz Hasan took possession of the allotted part of the building on the same day. The owner filed a revision application being No. 362 of 1949 before the Chief Judge, Karachi Small Causes Court which was compromised on the following terms :‑
"In view of the fact that the allotment order of the Rent Controller is made without jurisdiction, the parties arrive at the following compromise.
1. That the opponent will pay by way of mesne profits such sum from the date of his occupation as may be fixed by (mutual consent). The electric energy will be supplied to him.
2. That the opponent is given time upto 30th April 1950 during which period he must vacate the premises in his occupation.
3. That on the opponent failing to vacate the premises in his occupation as aforesaid, the applicant may proceed against him in the Court of law for ejectment. Karachi 23rd September 1949."
From this compromise it is evident, and it is admitted before us, that the Rent Controller had made that allotment order without having territorial jurisdiction over the area in which the building in dispute was situated. Aziz Hasan was, however, given time to vacate the part of the building allotted to him by the 30th of April 1950. Before the arrival of the final date the legal situation changed and the Rent Controller was given jurisdiction over the buildings situated in the area in which the building in dispute was situated. Aziz Hasan, therefore, made another application to the Rent Controller for its allotment and an allotment was again made in his favour on the 11th of October 1950. The owner preferred a revision from the second order of allotment also to the Chief Judge, Karachi Small Causes Court which was dismissed on 10‑7‑1951. The owner, therefore, filed a suit, being Suit No. 260 of 1950 for ejectment and mesne profits on the basis of the compromise. He did not mention in his plaint the second allotment order and the order of the revisional authority passed against him. Aziz Hasan resisted the suit as well as filed a cross suit,. being Suit No. 686 (sic) of 1950, on the basis of the second allotment order and chal lenged the legality of the compromise. He prayed for a declaration that his possession of the premises was legal. It is stated in para. 3 of the plaint that in execution of the compromise of the first Revision Application No. 362 of 1949, an order of ejectment was issued by the Chief Judge, Karachi Small Causes Court and a warrant of ejectment dated 19‑9‑1950 was delivered at the residence of Aziz Hasan. He, therefore, also prayed for a declaration that the ejectment order had no legal force.
The suits were tried by Inamullah; J. who dismissed the suit of the owner and decreed the suit of Aziz Hasan but did riot grant costs of his suit to him on the ground that it "was misconceived."
The owner has preferred appeals from both the judgments and decrees. These appeals were heard by Constantine and Wahiduddin, JJ. and four questions were formulated as stated above to Full Bench for decision.
The first question vii. whether Aziz Hasan is a licence or tenant on account of the compromise, need not be answered because Mr. Hafiz Sultan Ahmad, the learned counsel of Aziz Hasan, has stated before us that his client does not claim to be a tenant and admits that he was a trespasser until he became a tenant by virtue of the second allotment order.
Questions Nos. 2 to 4 which remain to be considered, briefly stated, are as to whether the premises which were allotted fall within the definition of the term "premises" as used in the Sind Rent Restriction Act, 1947, whether they were vacant according to the definition of the word vacant' as given in the said Act and as to what is the effect of the repeal of Ordinance No. I of 1953 by Act VIII of 1953.
Before discussing these questions it is proper to mention that the Sind Rent Restriction Act, 1947 (Act X of 1947) has from the beginning contained definitions of the terms premises'. "residential premises," landlord' and tenant' but did not originally contain the definition of the term vacant.' The object of the Act as stated in the preamble was three‑fold, viz. regulating the supply of accommodation, controlling the rents chargeable for such accommodation and preventing, except in certain circumstances; eviction of tenants from the accommodation supplied. The preamble ran as follows :‑
"Whereas it is expedient to regulate the supply of accom modation, whether residential or non‑residential, furnished or unfurnished, in the Province of Sind ; and in particular to provide for controlling the rents chargeable for such supply of accommodation and‑for preventing in certain cases eviction from the accommodation supplied."
It is noteworthy that no distinction is made in the preamble between the supply of residential and non‑residential acc6mmoda tion, yet the power conferred on the Rent Controller by section 15 of the Act was restricted to the allotment of residential premises.
The effect of this restriction was that the Rent Controller could regulate the supply of residential premises only although he could control rents of residential as well as non‑residential premises and could also prevent eviction in terms of the Act from premises of both types. It appears that after some time it was felt necessary to regulate the supply of non‑residential premises also and therefore by section 3 of Act No. XVII of 1948, the word residential' was deleted from sections 12 to 15 of the Act.
This object could be achieved by the insertion of the word premises' but this method was not employed. The expression left in sections 12 to 15 after the deletion is "any premises" and is meant to include a reference to premises' as well as "residential premises." In the. first line of sub‑section (1) of section 14 the word any' was not existing originally and therefore it .was inserted by section 5 of the amending Act (Act No. XVII of 1948). It is thus necessary to apply the definition of the term premises' or "residential premises" as the case may be, and it is not correct that the expression "any premises" always refers to premises' and not to "residential premises."
The effect of the amendment, was that sub‑letting of non residential premises (section 12) was controlled and intimation regarding the vacancy of non‑residential premises by the landlord and the tenant to the Rent Controller became necessary (sections 13 and 14) and the Rent Controller was empowered to allot non residential premises also (section 15).
The words "vacant" or "about to become vacant" which occur in subsection (1) of section 15 of the Act, limited the power of the Rent Controller to those premises, whether residential or non‑residential which were unoccupied or were about to become unoccupied. It was intended that the power of the Rent Controller for making allotments be extended to some of the buildings which were occupied. A definition of the word vacant' was therefore inserted in the Act (Act X of 1947) by section 2 (b) of Act No. XXVI of 1948. It is as follows :‑‑
vacant used in relation to any premises means and shall be deemed always to have meant that the premises are un occupied, or are occupied otherwise than by a landlord or tenant ; and in this clause, notwithstanding anything to the contrary in clause (8) of this section or in other enactment for the time being in force, the expression tenant' shall be deemed to exclude a person who has taken possession of any premises without the prior consent of the landlord."
From the last part of this definition, it would appear that the occupation of those tenants was also not protected who had taken possession of the premises without the prior consent of the landlord irrespective of the regularization of their occupation, as tenants subsequently.
Experience had probably shown that tenants were misusing the law and were able to get bigger premises allotted to them than were reasonably required for their needs. The Rent Controller was, therefore, given the power to treat so much of residential premises as may in his opinion be occupied in excess of the reasonable needs of a tenant. This amendment was made under section 3 (b) of Act No. XXVI of 1948, by adding subsection (4) to section 15 of the Act (Act X of 1947). The subsection runs as follows :
"(4) For the purposes of this section so much of any residential 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."
'The Sind Rent Restriction Act of 1947 (Act X of 1947), was originally enacted for a period of one year and power was given to the Provincial Government to extend its operation by notification in the Official Gazette for successive periods of one year at a time (Section 1 (5)). It was extended from time to time but the Sind Chief Court held that the extentions were invalid. It was, therefore, amended by the Sind Rent Restriction (Amendment) Act, 1952, but the Amendment Act was also held to be invalid by ' Muhammad Bukhsh, J., in Mufti Masroor Ahmad v. R. M. Mithani (P L D 1953 Sind 20). The Karachi Rent Restriction Ordinance (No. I of 1953) was then promulgated, which validated appointments, fair rents, acts and orders made, deter mined, done and passed under the Sind Rent Restriction Act of 1947 and the Amendment Act. It did not repeal any enactment. The Ordinance was soon replaced by the Karachi Rent Restriction Act of 1953 (Act No. VIII of 1953). The Act of 1953 repealed b the Sind Rent Restriction Act of 1947, the Sind Rent Restriction (Amendment) Act, 1952 and the Karachi Rent Restriction Ordinance (No. I of 1953).
Against this background of facts and law, we have heard the arguments of Mr. Kotwal for the owner of the building, of Mr. Hafiz Sultan Ahmad for Aziz Hasan and of Messrs. Noorul Arfin and Muhammad Shaft who applied to address us, because similar questions are involved in Appeal No. 56 of 1955. We have heard the appeal also and propose to dispose it of separately.
Mr. Kotwal made it clear at the outset that the definition of the word "premises" was of vital importance for the deter mination of the question as to whether the part of the building, which was allotted to Aziz Hasan, could at all be allotted by the Rent Controller. The definition is as follows :
" Premises' means any building or part of a building let for any purpose and includes----
(i) the garden, grounds and out‑houses, if any, appurtenant to such building ; and
(ii) any furniture supplied by the landlord for use in such building or part of a‑building, but shall not include a room in a hotel or a lodging house."
The word let' which occurs in the first part of the definition is the subject of keen context. Mr. Kotwal's, argument is that no building or part of a [building falls within the definition unless it is let' and that the part of the building which was allotted to Aziz Hasan by the Rent Controller having never been let by the owner could not be regarded as premises' and could not be allotted by the Rent Controller under section 15 of the Act of 1947 (Act X of 1947).
There is no doubt that this word is, in a way, the key word which determines the jurisdiction of the Rent Controller to make allotments. The expression "building let" is used in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 also in the following context :‑
"5 (8) Premises' means‑
(a) any land not being used for agricultural purposes,
(b) any building or part of a building let separately other than a farm building, including.‑
(i) . . . . . . . . . . ."
Commenting on this, R. B. Andhyarunina, the learned author of the Principles of Rent Control (1952 Edition) has stated in a footnote at page 159 as follows :‑
" It is submitted that the element of letting' is not an essential part of the definition of the term premises' given in S. 5 (8). Land' for instance, is defined as any land not being used for agricultural purposes. Obviously, there is no element of letting' in this branch of the definition. And it is highly doubtful whether, as a matter of strict grammar, the word let' in clause (b) of S. 5 (8) goes with the word building' in the same clause. The provisions of S. 25 and S. 5 (3) lend support to this submission."
In the Act before us there is no corresponding support to the objections raised by the author and letting' is an essential part of the definition and the word let' goes with the words "building or part of a building". Yet, there is no doubt that the expression "building let" is not very clear. Mr. Kotwal has suggested that it means a building "which is let". The words "which is", according to him, are to be read to understand the meaning of the expression. If the expression is read in this matter then it is necessary that there should be a subsisting tenancy of a building at the time of its allotment. In reply it is suggested that there is no particular reason to read the words "which is" and not the words "which was" or "which has been" or "which had been" or "which is to be". The definition of the word premises' as given in the Act, (Act X of 1947) was con sidered by a Division Bench of this Court in Riaz Ahmad Khan v. Muhammad Yusuf Khan (P L D 1956 Kar. 253) and the learned Judges have observed as follows :‑
" 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 if 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 so as to confine its operation to the barest‑minimum justified by its plain words."
According to these observations, the quality which makes a building premises' is that it should be "generally let" by the landlord. The idea of letting a building repeatedly appears to have been adopted in preference to the meaning suggested by the counsel in that case, which apparently was that the definition refers to the suitability of a building for being let. The learned Judges have, therefore, said that the farthest to which they could stretch the meaning was that the word premises' refers to a building "which the landlord generally lets" and that they could not bring themselves to hold that a building which was capable of being let yet was never let and was kept in reserve by the owner, could be allotted by the Rent Controller. We are in respectful agreement with the view that the idea of letting contained in the definition does not refer to the suitability or capability of a building to be let. But with utmost respect we D may add that according to the definition repeated letting of a building or part of a building does not appear to be necessary to us.
The word let' has been used as a principle in the expression "building let" and serves both as a verb and an adjective. According to its ordinary as well as grammatical use, it denotes present as well as past. No auxiliary verb ‑like is, was, has been, had been‑has been used with the object of keeping it indefinite, so that the expression may convey the sense of present tense; present perfect tense, past tense and past perfect tense as the case may be. In this sense the expression "building let" means a building which is rented or was rented or has been rented or had been rented. There is nothing in it however, which refers to future letting. The Concise Oxford Dictionary mentions a form of expression in which the word let' is used as an intransitive verb in passive voice. It is : "to let", which according to the Dictionary means "offered for rent". The words "to let" or "to be let" are thus independent expressions and we cannot read the words to' or "to be" as auxilliary words in the expression "building let". Moreover, offering for rent is not letting and therefore the meaning of the word let' will become changed if the words to' or "to be" are read with the word let'. It may appear superficially that the legislature might not have intended to exclude from legislative control a building which is offered for rent but this impression is created if we impute to the legislature an intention that there should be a comprehensive policy to regulate the supply of .accommodation ; yet there is no such presumption and if there was such an inten tion, it has not been expressed by the language employed by the legislature. An attempt to read the words, to' or to be' between the words "building let" amounts to changing the meaning of the expression "building let" from the ad of letting to the intention of letting. We, therefore, conclude that the expression "building let" means a building which is let or was let or has been let or had been let. In other words a building once let falls within the mischief of the definition of the term "premises". After letting out a building for once the landlord may desire to reserve it for his own use but such a desire is immaterial for the purposes of the definition.
In Riaz Ahrnad Khan's case, which has been mentioned above the learned Judges have noted an objection raised by the counsel before them and have met it in the following words :‑
" It may be argued (or was perhaps argued) that if this interpretation is adopted, one of the two contingencies 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."
This objection, suggested by the counsel, does not arise according to the meaning of the expression as understood by us.
It was suggested before us that under subsection (1) of S. 15 of the Act. (Act X of 1947) the Rent Controller "may direct the landlord to let the premises" which means that there should be a landlord of the premises' at the time of the direction and that there would be no landlord if the premises are not tenanted at the time of such direction. The definition of landlord' as given in the Act is as follows :‑
" Landlord' means any person for the time being entitled to receive rent in respect of any premises whether on his own account or on account or on behalf or for the benefit of any other person or as a trustee, guardian or receiver for any other person. It includes a tenant who sub‑lets any premises and every person from time to time deriving title under a landlord."
The expression "for the time being" does not mean at the time: of treating a person as a landlord' but at the relevant time'. The relevant time in the context is the time of tenancy. There; is a suggestion to the relevant time in the use of the term "premises" in the definition of landlord' because "premises" means a building let' in the present or in the past. According to "Judicial and statutory Definitions of Words & Phrases", Vol. 2 (Second Series), the expressions "for the time" and "for the time being" are equivalent to "temporarily". If it was intended that the landlord should be presently entitled to receive) rent in respect of the premises then the words "for the time being "I would not have been used.
In the case before us the owner never let out the part of the building which was allotted by the Rent Controller and thus it was not a building or a part of a "building let". Mr. Hafiz Sultan Ahmad has tried to get out of this difficulty by arguing that the definition of "residential premises" should be applied to the building in dispute and not the definition of premises' because this building is admittedly a residential building. The definition of the term "residential premises" is as follows :‑
"'residential premises" means premises let or occupied or intended to be let or occupied for residential premises."
According to the counsel this definition enlarges the definition of 'premises' by expressly including in it the idea of the in tention 'to let'. This argument omits to note the word 'premises' which occurs in this definition also. Residential premises have first to be 'premises' before they can fall within the definition of "residential premises". 'Premises' are the genus and "residential premises" are a species. The definition of "residential premises" is really meant to define the meaning of 'residential' only and does not enlarge the meaning of the term 'premises'.
The conclusion is that the allotment order dated 11‑10‑50 was void on the ground that the part of the building which it purported to allot was outside the scope of the definition or E 'premises' and as such outside the scope of the Act of 1947 (Act X of 1947).
The third question referred to us namely, whether the part of the building which was allotted was 'vacant' is in a way answered by the above reply, because the term 'vacant' is defined in relation to premises and we have come to the conclusion that the part of the building which was allotted was not 'premises'. In order to give a specific reply to the question we may, however, add that the words "occupied otherwise than by a landlord or a tenant" used in the definition of 'vacant' mean that occupation of 'premises' by any body who does not fall within the definition of 'tenant' or 'landlord' is to be disregarded. Premises so occupied are to be treated as vacant for the purposes of the H Act (Act X of 1947). Thus a building which is occupied by the owner, but which falls within the definition of the term 'premises' by virtue of having been once let would be 'vacant' 'premises' available for allotment.
We are not sure whether in the fourth and last question referred to us, it is to be presumed that the allotment orders dated 2‑6‑49 and 11‑10‑50 were validated by subsection (2) .of section 29 of Ordinance No. I of 1953 or not. From the language it appears that the presumption is raised but from question No. 2 it appears that it may not have been raised. Arguments were addressed to us as if no presumption exists. 1t is therefore proper for us to answer the question from both points of view. The answer in the two circumstances will be different. If there is no such presumption then we may state that these two orders were void ah initio the first order dated 2‑6‑49 was without jurisdiction, and the second order dated 11‑10‑50, purported to allot a part of a building which was not covered by the definition of the term 'premises'‑and that these orders do not appear to have been validated by subsection (2) of section 29 of Ordinance I of 1953, because according to this provision every order made or deemed to have been made by any officer or authority, acting or purporting to act under the Sind Rent Restriction Act, "is to be deemed to have been made . . . . . under the corresponding provision of this Ordinance." This means that we have to refer to the defini tion of the term premises' as given in Ordinance I of 1953. This definition is the same as in the Sind Rent Restriction Act, 1947. According to the definition of 'premises' as given in Ordinance I of 1953, also the part of the building in dispute which was allotted by the Rent Controller could not be considered to be 'premises' and could not be allotted. In other words, sub section (2) of section 29 of Ordinance I of 1953 has not validated those allotment orders which were not made in accordance with the terms of the Act (Act X of 1947).
If the above view is correct then the question whether or not the allotment orders "remained in operation after the repeal of the said Ordinance" does not arise. If, however, it is to be pre sumed that the allotment orders dated 2‑6‑49 and 11‑10‑50, were validated, then as required by the reference, we have to express our views on the effect of the repeal of Ordinance I of 1953, keep ing in view sections 25 and 28 of Act VIII of 1953, section 6 of the General Clauses Act and the relevant principles of common law.
The effect on these orders of subsection (2) of section 25 of Act VIII of 1953 is not similar to the effect of subsection (2) of section 29 of Ordinance I of 1953. Fair rents, acts and orders determined, done and made under Ordinance I of 1953, are to be deemed according to section 25 (2) of Act VIII of 1953, to have been determined, done and made "under the correspond ing provisions of this Act" but there is no provision in this allotment under which the Rent Controller can make an order of allotment This means that allotment orders are not validated by section 25 (2) of Act VIII of 1953.
Does section 28 (1) of Act VIII of 1953 validate them The wording of subsection (1) of section 28 is widely different. According to it
"Any order or rule . . . . shall, in so far as it is not incon sistent with the provisions of this Act, be deemed to have been made under the provisions of this Act and shall have effect accordingly".
It is to be considered as to what is the effect of the words "in so far as it is not inconsistent with the provisions of this .Act", which do not occur in section 25 (2) Do these words of section 28 (1) which do not refer to "corresponding provisions" enlarge the scope of this provision as compared to section 25 (2) If they do then, what is the effect of the words "and shall have effect accordingly" which seem to be restrictive and do not occur in section 25 (2) Besides, why should two provisions have been made in different terms regarding the same subject matter namely, orders one in section 25 (2) and another in section 28 (1) The answer appears to be that section 25 (2) validates fair rents, orders and acts determined, made and done in the course of the enforcement of the previous enactments and section 28 (I) saves rules and orders made and issued on their administrative side. This is why two separate provisions have been made. Such orders as were passed regarding evictions and rents are‑ validated, so that the control which was achieved by the previous enactments may not be undone and the administrative orders like orders passed to assign duties to the Rent Controllers or conferring powers of K revision on an officer, or containing directions issued by the Central Government are saved so that this Act may be enforced at once' (section 1 (3) without the need of having to wait to complete the administrative preliminaries for it. The words "not inconsistent with" and "shall have effect accordingly" used in connection with rules and administrative orders in section 28 (1) of the Act of 1953 are meant to allow generally that adaptations may be read in them wherever, necessary to remove inconsistencies. One may say that quasi judicial orders were validated as they were and the administrative orders were saved subject to the removal of inconsistencies with the Act of 1953. Section 28 (1) of Act VIII of 1953 is, therefore, irrelevant for purposes of allotment orders.
Section 29 of this Act (Act VIII of 1953) has thus repealed the Sind Rent Restriction Act, 1947, Sind Rent Restriction Amendment Act, 1952 and Ordinance I of 1953, without validating orders of allotment passed under any of them.
But what is the effect under section 6 of the General Clauses Act (Act X of 1897), of the repeal of Ordinance I of.1953 Section 6 is as follows :
"Where this Act, or any (Central 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 committing against any enactment so repealed ; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, for feiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
It is argued by Mr. Kotwal that according to a Full Bench ruling of the Lahore High Court reported in Crown v. Haveli son of Ghulam Muhammad (P L D 1949 Lah. 550), section 6 of the General Clauses Act 1897 does not apply to temporary enactments and as such would not apply to Ordinance I of 1953. It was a case in which the effect of the withdrawal by means of a notification of a temporary statute was considered. The Advocate General had conceded that section 6 of the General Clauses Act did not apply to the case. The ques tion, in the words of Cornelius J. was to be determined‑
"in the light of the known principles of statutory inter pretation".
It was pointed out during the discussion that S. 4 of the Punjab General Clauses Act and S. 6 of the General Clauses Act, 1897 were applicable, in their own respective spheres, to the repeal of statutes and that these provisions constituted a departure from the ordinary rule of common law applicable to repeals. A passage was quoted from Maxwell to indicate the departure and then Cornelius, J. observed
"From this it is clear that if certain conditions were satisfied the offence of the appellant Haveli which was committed at a time when the Punjab Disturbed Areas Act was in force in Sialkot District would continue to be punishable with death, despite the termination of the application of that statute. The necessary conditions are firstly that the statute should be of a permanent nature and secondly that it should have been repealed by an Act of the Provincial or Central Legislature. Neither of these conditions is satisfied in the present case. The withdrawal of the application of the Act from the Sialkot District was effected by a simple notification of the Provincial Government, in which the Provincial Legislature had no hand or part ; such a withdrawal cannot be regarded as being in any sense a repeal. Since the case is one involving penal liabilities, it is 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, Moreover, the considerations which apply to permanent statutes, in relation to their con tinuance after their expiry or repeal, are not the same as govern the effect of temporary statutes. The General law in relation to temporary statutes is that once such a statute has expired it ceases altogether to have effect as if it had never been, except as to transactions past and closed. This result follows unless there be provision made in the statute itself for continuing the effect thereof in any respect. (This used to be the position in respect of permanent statutes as well, as will appear from the extract reproduced above from Maxwell's Treaties). In the words of Sulaiman C. J. in the case of Bansgopal v. Emperor (A I R (20) 1933 All. 669 ; 34 Cr. L J 1030 (F B)).
"According to the English law, as a general rule, unless there is some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it and it ceases to have any further effect. It would follow that an offence committed against a temporary Act must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate."
There are two observations in this statement of the law which lend support to the argument that the view of the learned Judge was that section 6 of the General Clauses Act did not apply to temporary statutes. They are" . . . the statute should be of a permanent nature."
" the considerations which apply to permanent statutes in relation to their continuation after their expiry or .repeal, are not the same as govern the effect of temporary statutes."
The learned Judge was not referring in these remarks to section 6 of the General Clauses Act, but was thinking of the intention of the legislature found in the statute before him and pointed out the him in the subsequent part of the judgment in the following words
"It is quite clear that the temporary statute in question viz., the Disturbed Areas Act contains no words which can have the effect of saving its operation in respect of any transaction not commenced and closed prior to the date of its withdrawal.
The absence of such a provision serves also to my mind, to indicate an intention on the part of the law‑making authority that its provisions were to expire immediately upon its ceasing to have effect. It is plain that the statute was enacted at the time when the Province was faced with a serious situation on account of the wide‑spread disturbances, which preceded the partition of the Indo‑Pakistan Sub‑continent in August 1947."
If there is an intention of the legislature that the provisions of a temporary statute should expire immediately upon its ceasing to have effect then section 6 of the General Clauses Act would not apply by virtue of these words of the section
"unless a different intention appears."
This intention which was found in the temporary statute is not likely to be found in a permanent statute being generally inconsistent with its permanent nature. There is no doubt that this is a peculiar consideration which applies to the effect of the repeal of a temporary statute when we come to think of the peculiarities of its nature and it is consistent with section 6 of the General Clauses Act. The intention of the legislature contemplated in this section may be found in the Act which is repealed as much as in the Act which repeals it.
A Division Bench of this Court has considered in Riaz Ahmad Khan v. Muhammad Yusuf Khan (1) the observations of the Full Bench and the learned Judges have observed at page 260 :‑
"But Cornelius, J. reproduced the following passage from the judgment of Darling, J. in R. v. Ellis.( P L D 1956 Kar. 253)
"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 opera tive 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, therefore, suggested, with respect, that the observations in Haveli's case that S. 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."
We would like to state with respect that some observations of Cornelius, J. are likely to be misunderstood but it appears to us that the learned Judge has not ruled that section 6 of the General Clauses Act does not apply to temporary statutes. Indeed a conclusion to the contrary would have been manifestly question able.
Section 6 of the General Clauses Act deals with the effect of the repeal of a Central Act or Regulation. It does not deal with any other subject. Apart from repeal, there are, however, other ways in which a statute may become defunct. One of them is the expiration of its life, if it is a temporary statute. A permanent Act cannot expire. It may, therefore, be said that section 6 does not deal with the effect of the expiration of temporary Act, but there is nothing in this section to warrant the conclusion that it does not deal with the effect of the repeal of a temporary Act. A permanent statute cannot expire but a temporary statute can be repealed and section 6 deals with the effect of the repeal of "any l Central Act or Regulation" whether temporary or permanent'. A number of rulings were cited in support of this proposition. We refer only to State of Punjab v. Mohar Singh Pralap Singh (A I R l955 SC 84) in which the exposition of law is clear and for the present purposes comprehensive also. The learned Judges have observed :‑
"Of course, the consequences laid down in section 6 of the Act will apply only when a statute or regulation having the force of a statute is actually repealed. It has no application when a statute, which is of a temporary nature automatically expired by efflux of time. The ordinance in the present case was undoubtedly a temporary statute but it is admitted that the period during which it was to continue had not expired when the Repealing Act was passed. The repeal therefore was an effective one which would normally attract the operation of section 6 of the General Clauses Act. The controversy thus narrows down to the short point as to whether the fact of the re‑enactment would make the provision of section 6 of the General Clauses Act inapplicable, to the present case.
And further
"Whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears.
In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a con sideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material.
Ordinance I of 1953 and two previous statutes were repealed by Act VIII of 1953. Section 6 of the General Clauses Act would save the allotment orders passed under the repealed statutes unless a different intention appears. We have held that allotments made under the statutes previous to Ordinance I of 1953 were validated by the Ordinance, and if it is to be presumed according to the reference that the allotment orders in question were good orders under the previous statutes and were also validated by the Ordinance, then there is no doubt that they remained in operation because there is nothing in Act VIII of 1953 to show that there was an intention to destroy or annul those allotment orders which were saved by the repealed Ordinance.
In Haji Adam v. Sufia Qadir (P L D 19,57 Kar. 100) Lari, J., has approached the question of the effect of repeal and re‑enactment from a different angle. He did not consider it necessary to question the view that section 6 of the General Clauses Act does not apply to statutes which are repealed and re‑enacted and has observed
"Sind Rent Restriction Act X of 1947, was a composite legisla tion. It dealt with two subjects, allotment of premises and determination of fair rent. The Karachi Rent Restriction Act VIII of Act VIII of 1953, on the other hand had nothing to do with allotments, but mainly concerned itself with deter mination of fair rent and consequential proceedings. The position, therefore, is that the Karachi Rent Restriction Act did not enact the provisions of Karachi Rent Restriction Ordin ance I of 1953, regarding allotment. The entire Ordinance was repealed by enactments there, regarding allotments were not repealed in the Karachi Rent Restriction Act. Therefore, so far as legislation with regard to allotment is concerned Ordin ance was repealed without simultaneous re‑enactment. In regard to allotments, therefore, there was pure and simple repeal and even according to the dictum of Sir Shah Suleman the provisions of section 6 of the General Clauses Act would apply to such a repeal."
In the view which we are taking re‑enactment is immaterial, and section 6 of the General Clauses Act would govern the effect of repeal irrespective of re‑enactment, unless the will of the legisla ture is found to be inconsistent with it. In the above mentioned case of Haji Adam, there is a reference to two Allahabad rulings according to which section 6 of the General Clauses Act applies, "only where a previous law has been' simply repealed and there is no fresh legislation to take its place." Where there is a new law which not only repeals the old law, but is substituted in place of the old law section 6 of the General Clauses Act, is not applic able and we would have to fall back on the provisions of the new Act itself." Suleman, C. J., made these observations in Danmal Parshotam Dass v. Babu Ram Chhote Lal (A I R 1936 All, 3 at p. 7), and this view was approved in Benares Bank Ltd. v. Shri Sri Prakasha Bhagwan Das and others (A I R 1946 All. 269 at p. 270) in a case in which there was not, "in form at least," "even repeal". We have no doubt that we would have to carefully note the provisions of such a new statute and may add that we would, in a majority of such cases, find some provision like saving or validating provisions in it which would indicate the will of the legislature with regard to the effect of repeal, but if we were to come across a statute in which the will of the legislature in this regard is not found to be different from section 6, then with respect to the Allahabad view we think that section 6 of the General Clauses Act would apply. There is an order of precedence in the importance of directly ascertainable intention of the legislature, the provisions of the General Clauses Act and General principles of interpretation. First comes the directly, ascertainable will of the legislature, then the General Clauses Act and then the general principles of interpretation. The effect of repeal should be determined according to the pro visions of section 6 of the General Clauses Act if the intention of the legislature in this regard is not found, although, the principles of section 6 which is also the will of the legislature expressed generally, would render valuable assistance in resolving ambiguities when an ambiguity can be resolved with the help of a principle. The principles of common law or, to be more accurate, the first principles of statutory interpretation would apply after it is found that neither the intention of the legislature can be ascertained nor section 6 applies, although their great value as guides to the right course at every stage of an enquiry to which they may be relevant is abundantly clear. In the present case, we think we have been able to ascertain the intention of the legislature and to allow ourselves to be guided entirely by it. It would be out of place and perhaps irrelevant now to invoke the principles of common law.
To sum up, our answers to the questions referred to us are as follows
(1) The stand of Aziz Hasan on which the first question is based has been abandoned by Mr. Hafiz Sultan Ahmad.
(2) The part of the building which was allotted is outside the scope of the definition of "premises" and as such outside the scope of the Act (Act X of 1947).
(3) The question whether the "premises" which were allotted were "vacant" is, in a way, answered by the above reply ; yet to be specific, we may add that if the part of the building which was allotted could be said to be "premises" then they were
(4) (a) If the intention of the reference in this question is note to presume that the allotment orders dated 2‑6‑49 and 11‑19‑50,1. were validated by Ordinance I of 1953, then our answer is that; they continued to be invalid after the passing of the Ordinance ',
(b) but if the intention is to presume that these allotment orders were validated by Ordinance I of 1953, then our answer is that they remained in operation after the repeal of the Ordinance.
A. H. Reference answered.
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