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Second Appeal from Order No. 166 of 1962, decided on 30th April 1963.

S. 3(1), (3)-Evacuee property acquired by Central Government under S. 3-Words in subsection (1) : "for any of the purposes of this Act", and in subsection (3) : "vest wholly and absolutely in the Central Government free from all encumb rances"-Such property not exempt from provisions of West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 3 and West Pakistan Government Notification No. HG-10-2/59, dated 12-3-1959, Gazette, Extraordinary, dated 16-3-1959.

Held, that the West Pakistan Urban Rent Restriction Ordinance, 1959 is not rendered inapplicable to the property acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and that persons to whom pro visional transfers of such property have been made, are not prevented from instituting and prosecuting proceedings under that Ordinance against the tenants of those properties.

The contention of the appellant's counsel was that since the property (shop) acquired under section 3, Displaced Persons (Compensation and Rehabilitation) Act, 1958, "vested wholly and absolutely" in the Central Government, and since, by reason of the Notification No. HG-10-2/59, dated 12-3-1959, (West Pakistan Gazette, Extraordinary, dated 16-3-1959), property "vested" in the Central Government was exempt from the pro visions of the West Pakistan Urban Rent Restriction Ordinance, 1959 by virtue of section 3 of the Ordinance, the appellant could not be evicted from the shop by proceedings taken under section 13 of the Ordinance.

agreeing) that the argument was fallacious because it does not take into consideration the limita tion that has been imposed by subsection (1) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on the title of the Central Government to the property acquired by it under that section. The words "for any of the purposes of this Act", which occur in the subsection, qualify the acquisition and place all that property which is so acquired in a class by itself. Such property does not belong to or vest in the Government so as to entitle it to use it for its own purposes or for any purposes other than those of the Act. Such entire property thus does not vest in the Central Government in the sense in which, for instance, the property which devolved on it under Article 231, or accrued to it under Article 133, or was acquired by it under Article 134 of the late Constitution, vested in it. The word "vest" used in section 3 of the Act and in the notification issued under section 3 of the West Pakistan Urban Rent Restriction Ordinance, 1959 thus refers to two different concepts of ownership and should not be understood to convey exactly the same meaning. There is no other property which vests in the Central Government except the property acquired under section 3 of the Act, which the Government is legally bound to use for the purposes of the Act only. If this distinction is kept in mind, the confusion disappears and it becomes clear that the exemption of the application of the Ordinance to the property that vests in the Central Government in the ordinary sense is not applicable to the property which vests in it exclusively for the purposes of the Act.

The restriction on the use of the property is imposed by subsection (1) of section 3 of the Act, but later in subsection (3) of that section the vesting is made whole' and absolute'. There is, however, no inconsistency between the two provisions because taken together, they mean that the vesting is complete for the purposes of the Act.

Per Muhammad Yaqub Ali, J.-Since evacuee immovable property acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was included in evacuee pools and could not be leased out by the Government, the conditions in which the provisions of the Urban Rent Restriction Ordinance could apply to it, therefore, did not come into existence. The scope of the notification under section 3 of the Wes Pakistan Urban Rent Restriction Ordinance, 1959, must, accordingly, be restricted to such property vesting in the Central or Provincial Government which is leased out by them to tenants and to no other property.

Nawab Ahmad for Appellant.

Sardar Ahmad with Gul Nawaz Ahmad for Respondent.

Date of hearing: 11th April 1963.

This is a Second Appeal under section 15 of the West Pakistan Urban Rent Restriction Ordinance 1959, which was referred by me as a Single Judge to a larger Bench, as follows :-

"The argument advanced by the learned counsel (for the appellant) being of general nature, it is proper that the hearing of this appeal be referred to a larger Bench. Put up before the Chief Justice for orders."

The Chief Justice was pleased to constitute this Full Bench which has heard the appeal.

2. The argument which was advanced by counsel for the appellant was that the Ordinance is not applicable to any property which is acquired by the Central Government in terms of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, because such property vests in the Central Government and as such is exempt from the application of the Ordinance under section 3 of that Ordinance. This argument was advanced before me in several other appeals also because attention is drawn to it by the word "vest" which occurs in section 3 of the Act as well as in a notification, which has been issued under section 3 of the Ordinance.

3. The short facts which form the background of this appeal are that the respondent applied to the Rent Controller, Multan for the eviction of the appellant from a shop on the ground that the appellant had failed to pay its rent. The Rent Controller ordered the appellant to deposit Rs. 63,00 towards the payment of the arrears of rent and Rs. 3 00 per month as the current rent. The appellant failed to deposit the current rent; therefore, the Rent Controller struck off the appellant's defence and directed him to deliver possession of the shop to the respondent. The appellant went in first appeal against that order to the District Judge, Multan, who dismissed the appeal in liming. He has come to this Court in Second Appeal against the last order.

4. Counsel for the appellant has advanced only one argu ment in support of the appeal. As the first step of his argument he has contended that the property which is acquired under section 3 of the Act vests "wholly and absolutely in the Central Government free from all encumbrances".

The relevant part of the section is as follows:-

"3. Power to acquire evacuee property-

(1) The Central Government may, for any of the purposes of this Act, by notification in the official Gazette, acquire any evacuee property within the Federal Capital other than agricul tural land.

(2) As and when so required by the Central Government, the Government of West Pakistan shall, for any of the purposes of this Act, by notification in the official Gazette, acquire such evacuee property, other than agricultural land situated in the Province (excluding the Federal Capital), as the Central Govern ment may deem it necessary to acquire.

(3) On the publication of a notification under subsection (1) or subsection (2), the right, title and interest, of any evacuee in the evacuee property specified in the notification, shall, with effect from the date of such publication, be extinguished, and the property shall vest wholly and absolutely in the Central Government free from all encumbrances."

4-A. The shop which is the subject-matter of this appeal, was admittedly acquired by the Central Government in exercise of the powers conferred on it by subsection (2) of the above reproduced section by the following notification:-

"(Gazette of Pakistan Notification No. U. 8. 79/3113, dated 21st August 1959.)

Whereas the Central Government, in pursuance of the powers conferred by subsection (2) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, (hereinafter referred to as the said Act') have asked the Government of West Pakistan to acquire, for the purposes of the said Act, all immovable evacuee property situated within the Province of West Pakistan, other than-

(i) agricultural land;

(ii) Property for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee Property) Act, 1957, or under any law for the time being in force for the administration of evacuee property in Pakistan, has been accorded before the date of this notifi cation;

(iii) Property with regard to which any proceedings are pend ing on the date of this notification under the Pakistan (Adminis tration of Evacuee Property) Act, 1957, before a Custodian; and

(iv) Property situated within the limits of the Murree Municipal Committee and the Murree Cantonment Board.

Now, therefore, in exercise of the powers conferred by subsection (2) of section 3 of the said Act, the Government of West Pakistan is, hereby, pleased to acquire, with immediate effect, all the said evacuee immovable property."

As the shop vests in the Central Government, counsel proceeded, it is exempt from the application of the Ordinance by virtue of a notification issued under section 3 of that Ordinance. The section and the notification are as follows:-

"3. Exemption.-Government may direct by a notification published in the Gazette that all or any of the provisions of this Ordinance shall not apply to any particular building or rented land or any class of buildings or rented lands."

"No. HG-10-2/59, 12th March, 1959, (Gazette, Extraordinary, 16th March 1959).-

In exercise of the power conferred by section 3 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Governor of West Pakistan is pleased to direct that the provisions of the said Ordinance shall not apply to buildings and rented land vested in the Central or Provincial Government."

5. Counsel explained on the basis of the above provisions that, since the shop "vests" in the Central Government and the Ordinance does not apply to those buildings which "vest" in that Government, the Rent Controller had no jurisdiction to order the ejectment of the appellant. It is obvious that if the word vest" has the same meaning in the context of subsection (3) of section 3 of the Act as well as in the notification which has been issued under section 3 of the Ordinance, then the argument of learned counsel has force in it; otherwise it suffers from a logical fallacy.

6. I think that it is fallacious because it does not take into consideration the limitation that has been imposed by sub section (1) of section 3 of the Act on the title of the Central Government to the property acquired by it under that section. The words "for any of the purposes of this Act", which occur in the subsection, qualify the acquisition and place all that property which is so acquired in a class by itself. Such property does not belong to or vest in the Government so as to entitle it to use it for its own purposes or for any purposes other than those of the Act. Such entire property thus does not vest in the Central Government in the sense in which, for instance, the property which devolved on it under Article 231, or accrued to it under Article 133, or was acquired by it under Article 134 of the late Constitution, vested in it. The word "vest" used in section 3 o g the Act and in the notification issued under section 3 of the Ordinance, thus refers to two different concepts of ownership and should not be understood to convey exactly the same meaning. There is no other property which vests in the Central Government except the property acquired under section 3 of the Act, which the Government is legally bound to use for the purposes of the Act only. If this distinction is kept in mind, the confusion disappears and it becomes clear that the exemption of the application of the Ordinance to the property that vests in the Central Government in the ordinary sense is not applicable to the property which vests in it exclusively for the purposes of the Act.

7. The restriction on the use of the property is imposed by subsection (1) of section 3 of the Act, but later in subsection (3) of that section the vesting is made whole' and absolute'. There is, however, no inconsistency between the two provisions because taken together, they mean that the vesting is complete for the purposes of the Act.

8. Three more possible arguments for and against the appellant were briefly mentioned during the discussion of this appeal. Two of them had reference to sections 29 (l) and 30(4) of the Act, but were too weak to deserve their discussion here. The third was that the word "vested", which occurs in the notifi cation issued under section 3 of the Ordinance restricts the appli cation of that notification to the property which had already devolved on, or accrued to, or was acquired by the Government up to the date of the notification which date is the 12th of March 1959; therefore, that notification cannot be said to include in its scope the property which became the property of the Government by the subsequent notification, dated the 21st of August 1959, made under section 3 of the Act. The implications of this argu ment are, much wider than relevant to this appeal; therefore, I would not rely on it, and leave it out of consideration.

9. The conclusion is that the Ordinance applies to the shop of the respondent. The appeal is, therefore, dismissed with costs. This conclusion was announced by us in Court at the close of the arguments on the 11th of April 1963.

--I am in respectful agreement with the judgment proposed to be delivered in this case by my learned brother Qadeer-ud-Din Ahmad and may, with advantage, add another reason in support of the conclusion arrived at by him.

2. The effect of the notification issued by the Governor of West Pakistan under section 3 of the West Pakistan Urban Rent Restriction Ordinance, 1959 is that the tenants of buildings and rented land vested in the Central or Provincial Government are not entitled to the safeguards provided by the Ordinance for ordinary tenants. Conversely, the Government, Central or Provincial, is not subject to the other restrictions and obligations imposed by the Ordinance on the landlords, e. g.---

(i) prohibition on charging premium in addition to fair rent and premium for the grant, renewal or continuance of a tenancy; (6th and 7th sections)

(ii) liability to refund excess rent which should not have been paid under the Ordinance; (8th section)

(iii) restriction on interfering with the amenities enjoyed by the tenant; (10th section)

(iv) the authorization by the Controller that the tenant may carry out repairs if the landlord has omitted to do so; (12th section)

(v) safeguards against eviction; (13th section).

3. It follows that the notification under section 3 of the Ordinance is applicable to only such buildings and rented land vested in the Central and Provincial Governments which would otherwise have come under its operation. Since evacuee immov able property acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) was included in evacuee pools and could not be leased out by the Government, the conditions in which the provisions of the Urban Rent Restriction Ordinance could apply to it, therefore, did not C come into existence. The scope of the notification under section 3 of the Urban Rent Restriction Ordinance, 1959, must, accordingly, be restricted to such property vesting in the Central or Provincial Government which is leased out by them to tenants and to no other property.

At the conclusion of the argument, my learned brothers and I came to the unanimous conclusion that the West Pakistan Urban Rent Restriction Ordinance, 1959, is not rendered inapplicable to the property acquired under section 3 of the Displaced Persons (Compensation and Rehabili tation) Act, 1958, and that persons to whom provisional transfers of such property have been made, are not prevented from instituting and prosecuting proceedings under that Ordinance against the tenants of those properties. We accordingly dismissed) this appeal by the following short order:-

"For reasons to be recorded later in the judgment, this appeal is dismissed with costs."

2. My learned brothers have now recorded those reasons with which I agree.

A. H. Appeal dismissed.

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