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Petitioner: SALIM AKBAR VS Respondent: THE GOVERNMENT OF SIND THROUGH THE 'SECRETARY JUDGMENT
Court Name: Sindh High Court Judge(s): Naimuddin Ahmed Title:SALIM AKBAR vs THE GOVERNMENT OF SIND THROUGH THE 'SECRETARY
JUDGMENT
Reported As: PLD 1984 Karachi 358 Result: Case remanded Judgment JUDGMENT ' In these 7 appeals under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the 1979 Ordinance), common questions of law have been raised. I therefore, propose to decide all these 7 appeals by this common judgment. 2. In F. R. A. No. 19 of 1981, in September, 1978, the appellant filed a rent application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the 1959 Ordinance) for eviction of the Government of Sind (hereinafter called the Government) and the Karachi Metropolitan Corporation (hereinafter called the Corporation) for their eviction from the house bearing No. C-37, Block D, North Nazimabad, Karachi, on the grounds of default in payment of rent and personal requirement. (ii) It may be mentioned here that the house was let out to Mrs. Safia Naheed who operated a school therein under the name and style 'Pak Land School', at a monthly rental of Rs. 430. Upon promulgation of Martial Law Regulation No. 118 in 1972, the School was nationalised and all its properties with leasehold right's to the house vested in the Government. Thereafter, on the instructions of the Government, the Corporation started running the School. (iii) Mr. Sabihuddin Ahmed stated that on 20-10-1979, an order for deposit of arrears of rent was passed, but it was allegedly not complied with and therefore, on 9-4-1981, an application under section 16 of the 1979 Ordinance was filed, which remained pending. (iv) However, after issuance of Notification No. V111(3)S01/75 dated 29-7-1980, by the Government and in exercise of the powers conferred on them under subsection (2) of section (3) of the 1979
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Ordinance, on an application made on behalf of the respondents, the learned Controller by the order, dated 27-11-1980, rejected the applications. (v) It may be convenient, if I reproduce here the Notification. It reads as follows "No. VIII(3)S01/75.-In exercise of the powers conferred by subsection (2) of section 3, of the Sind Rented Premises Ordinance, 1979. The Government of Sind, are pleased to exempt the premises belonging to t!-e councils constituted under the Sind Local Government Ordinance, 1979 and the premises of the Colleges and School, taken over under Martial Law Regulation 118 of 1972 from the application of the said Ordinance." 3. In F. R. A. No. 146 of 1981, the facts are almost similar with the exception that the application for eviction under section 13 of the 1959 Ordinance was filed only against the Corporation for its eviction from the premises bearing House No. 111-G. 9-16/A, Nazimabad, Karachi, on the grounds of default in payment of the rent and materially impairing the value and utility of the premises, nuisance and personal use. 4. In F. R. A. No. 172 of 1981, the application was filed against the Director of Schools, for eviction of the Director from the premises bearing No. A/169, Block-H, North Nazimabad, Karachi, on the grounds of default in payment of rent and personal requirement of the premises. 5. In F. R. A. No. 187 of 1981, the application was filed against the Corporation in respect of the premises bearing No. H 11/23, G. R. E. 467/29, Ghohar Street, Garden East, Karachi, for eviction of the Corporation on the grounds of default in payment of rent and personal requirement of the premises. 6. In F. R. A. No. 189 of 1982, the application was filed, against the Government, their officers, and the Corporation for their eviction from the premises bearing No. 8, Chalta No. 5, Survey Sheet No. 9, Commercial/ Machine Area, Liaquatabad, Karachi, on the grounds of default in payment of rent and personal requirement of the premises. 7. In F. R. A. No. 215 of 1981, the application was filed against the Government, Principal, Government Islamic College (for Women), for their eviction, from the premises No. J. M. 5/925, Bahadur kar Jang Road, Karachi, on the ground of default in payment of rent and unauthorised construction. 8. In F. R. A. No. 379 of 1981, the application was filed against the Government and the Corporation for their eviction from the premises bearing No. SR-911, Frere Road, Karachi, on the grounds of default in payment of rent, sub-letting, and impairing the value and utility of the premises. 9. The remaining material facts are the same as mentioned in respect of F. R. A. No. 19 of 1981, in paragraph 2, hereof with the exception that no application for deposit of rent is said to have been made or any order for deposit of rent was passed in other cases. 10. 1 have heard Messrs J. H. Rehmatullah, S. Sabihuddin Ahmed, Rehanul Hasan Faruqui, Mushtaq Hussain, Wajihuddin Ahmad, Munir Hussain and Shafat Hussain Advocates for the appellants and Mr. Muhammad Ibrahim Memon, Additional Advocate-General, Sind, for Government and their officers, and Mr. S. M. Naqvi, Advocate for the Corporation. 11. The learned counsel for the appellants have questioned the order impugned in these appeals on the ground that the learned Controller seriously erred in applying the notification to pending proceedings. They submitted that the notification could not be given retrospective effect so as to apply it to pending proceedings. 12. Mr. Wajihuddin Ahmad additionally submitted that the powers under section 3(2) of the 1979 Ordinance could not be exercised in relation to the property in respect of which 'applications under section 13 of the 1959 Ordinance were filed. 13. On the other hand, Mr. Muhammad Ibrahim Memon, Additional Advocate-General, Sind and Mr. S. M. Naqvi, Advocate strenuously contended that the notification was rightly applied to pending proceedings as it was related to procedure and forum. 14. Therefore, the following points may have to be considered in these appeals.
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"(1) Whether the notification operates retrospectively so as to affect the pending proceedings ? (2) Whether the Government could not exercise powers under section 3(2) of the 1959 Ordinance, in respect of properties which were subject, matter of the pending proceedings ? 15. Now, taking up the first point it may be stated that there is no indication in the 1979 Ordinance that the powers under section 3 could be4 exercised retroactively at any time and there is also no indication in the notification that it was intended to exempt the properties with retrospective effect so as to affect the pending proceedings. It could not have been done for it is well settled that a notification issued under the purported exercise of the delegated powers under a law cannot be made to operate. Retroactively so as to impair an existing or vested right or impose a new - liability or obligation. However, if authority is needed reference may be had to : ' Sh. Rahmatullah v. The Deputy Settlement Commissioner, Centre 'A' Karachi and others (1), Sheikh Fazal Ahmad v. Raja Ziaullah Khan and (1) PLD 1963 SC 633 ' another (1), Works Co-operative Housing Society and another v. The Karachi Development Authority (2), Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong (3), Commissioner of Sales Tax (West) Karachi v. Messrs Kruddsons Ltd. (4) and Muhammad Suleman etc. v. Abdul Ghanl (5). 16. In Sheikh Fazal Ahmed's case, Kaikaus, J., at page 501 of the report observed as follows "An obvious objection to this amendment is that it is a notification by the Government in exercise of the power of subordinate legislation and such power does not include a power to give retrospective effect. The power of subordinate legislation which is exercised by the executive is a very limited power. Its exercise even to a limited extent had been objected to on the ground that the fact that a Legislature had been empowered to legislate on a particular subject did not imply that it could delegate its power of legislation to any other person or body of persons. The power of delegation had, however, to be accepted to a limited extent because in many cases it is almost impossible for the Legislature to make provisions in detail and in some cases the time or the occasion for applying a statute has to be left to the executive Government. It was considered that it was not possible for the Legislature to exercise its functions properly unless the grant of subordinate legislative power to the executive was permitted to this extent. However, the subordinate legislative power is to be permitted only to the extent to which it is necessary for the power exercise of its function by the Legislature and a power to legislate with retrospective effect has never been accepted as included in a power of subordinate legislation." 17. In the case of Collector of Central Excise and Customs and 3 others v. Azizuddin Industries Ltd. Chittagong (supra) Yaqoob Ali, J. (as he then was) at page 444 of the report observed :- "The next question which arises in this case is whether the notification of the 28th February, 1964, which purported to destroy completely the rights vested in the respondent by the notification dated the 30th June, 1961, and the 17th May, 1963, is valid in law. It is a settled rule that an executive authority cannot in exercise of the rule-making power or the power to amend, vary or rescind an earlier order, take away the rights vested in the citizens by law. This very question fell for decision before the Court in Civil Appeal No. 3-P of 1965 (Government of Pakistan v. Messrs Mardan Industries Ltd.) Dealing with the validity of the latter Notification dated the 19th May, 1964 it was observed : 'It is well settled that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such construction.' . . . . . . . . ' The respondent had acquired a vested right of exemption from the levy of excise duty on all the goods produced or manufactured by it for a period of four years under the Notifications of the Central Govern- (I) PLD 1964 SC 494
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(2) PLD 1969 SC-430 (3) PLD 1970 SC 439 (4) PLD 1974 SC 180 (5) PL,D1974SC190 ' meat referred to above. That vested right could not, therefore, be taken away by an executive action." 18. In Commissioner of Saks Tax (West) Karachi v. Messrs Kruddsons Ltd it was observed by Muhammad Gul, J., at page 184 of the report reiterated rule as follows :- "It is well-settled proposition that a notification by the Provincial Government cannot operate retrospectively to impair an existing right or to nullify the effect of a final judgment of a competent Court even if the notification be expressly so designed." 19. I may also quote the observation of Karam'Elahee Chouban, J., in Muhammad Saleem v. Abdul Ghani of the report ' Even otherwise it is well-settled as laid down in Sh. Faze Ahmed v. Raja Ziaullah Khan and another and Sh. Rehrnatullah v. The Deputy Settlement Commissioner Centre 'A, Karachi and others that such notification which curtail or extend rights, of the citizens, cannot be retrospective and this is all the more so in such cases when a state of things is to take place by publication of a notification which means from the date of its publication in the Gazette and not from any prior date or to be more precise, not from the date of notification itself if it is prior to the actual date of the publication in the Gazette, because then it will tantamount to giving that notification a retrospective effect not from its publication but from a date prior thereto which as explained above is not permissible according to the relevant law itrYtolved in this case." 20. However, the learned Additional Advocate-General and S. Muslim Naqvi have submitted that the Notification did not affect any right but it only changed the procedure and forum and therefore, the notification was rightly applied by the Controller to the pending proceedings. 21. The Controller in the impugned order has applied the notification to the pending proceedings by simply quoting the notification and the provisions of subsection (2) of section 3 of 1979 Ordinance and stating that he was of considered opinion that he was no more competent to proceed further with the cases as the premises in the ease were exempted from the application of the Ordinance. 22. In support of the view taken by the Controller Mr. Naqvi heavily relied on a Single Bench decision of this Court in Mst. Kha3ija Merchant v. The K. M. C. Through Mayor (1), wherein the learned Judge observed "there can be no manner of doubt that the notifications relates to a procedural law inasmuch as bars a remedy. No party has a vested right in a particular remedy conferred by Statute". In support the learned Judge relied on Adam Afzal v. Capt. Sher Ajzal (2), wherein their Lordships of the Supreme Court have held as follows '"The general principle with regard to the interpretation of statutes laid down in the well-known case of Colonial Sugar Resins Co. Ltd. v. Irving 1905 A C 369 is that 'if the matter in question be a matter of procedure only', the provisions would be retrospective. 'On the other hand, if {{FOOT NOTE}} (1) 1983 CLC 535 (2) PLD 1969 SC 187 {{FOOT NOTE}} ' it be more than a retrospective. 'On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act', then 'in accordance with a long line of authorities-extending from the time of Lord Coke to the present day', the legislation would not operate retrospectively, unless the Legislature bad either `by express enactment or by necessary intendment' given the legislation retroactive effect. To the same effect are the observations of Jessel, Master of the Rolls, in the case of In re : Joseph Suche & Co. Ltd. (1875) 1 Ch. D. 48 where it was observed that as a "general rule when the Legislature alters the rights of parties by taking
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away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not effect them, it is said that there is one exception to that rule, namely, that, these enactments merely effect procedure and do not extend to rights of action, they have been held to apply to existing right'. The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that question relating to jurisdiction over a case of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus, a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospectively being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights as affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective tact to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassm ent or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively." It will be seen from the above observations that this case itself recognizes the principle that if the matter is more than a matter of procedure, if it touches a right in existence at the passing of the Act, then in accordance with alone line of authorities-extending from the time of Lord Coke to the present, the legislation would not operate retrospectively, unless the Legislature had either' by express enactment or by necessary intendment' given the legislation retroactive effect. 23. Therefore, the first question for consideration is what are procedural matters ? 24. In Adnan After's case matters relating to the remedy the mode of trial, the manner of taking evidence and forms of Potion were held to be matters of procedure. Reference is made in this very case to Crawford, according to whom the questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence provided burden of proof is not shifted are matters of procedure. 25. In the light of the above observation I have to consider what is the effect of the notification? Does it affect the procedure or changes the forum only or does it affect the rights of the parties? If I examine the provisions of the Ordinance, 1959 or 1979 Ordinance, it would be obvious that it has conferred certain rights on a landlord and certain rights on a tenant and similarly it imposes certain obligations on them. For example a landlord is given a right to evict a tenant in case he makes default in payment of rent, without the permission of the landlord uses the premises for the purpose other than that for which it was let out or commits acts which impair the material value or utility of the premises let out to him. Similarly a tenant could not be evicted except on the grounds mentioned in the relevant section of the Ordinance. These rights have not been conferred on such persons by or under any other law including the Transfer of Property Act, wherein the rights and obligations of lessor or lessee are governed by the provisions of sections 105 to 117. Now, therefore, if a tenant has committed an act whereby a landlord has become entitled to evict a tenant and a landlord has filed a case he has acquired a vested or substantive right. It will therefore, not be a matter of procedure. Further it will also not be a matter of change of forum for he cannot proceed with the case before any other Court or forum on the same grounds or on the same cause of action. ' Here I will refer to the following 'observations of Hamoodur Rahman, J., in Ghulam Muhammad Khan Lundkhor v. Safdar All (1), which show that 1959 Ordinance conferred certain rights and obligations on landlord and tenant.
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' Having regard to the language of this subsection we find it difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequences of a default has used mandatory words to direct the Rent Controller, to enforce the consequence. The object of this subsection is not so much to afford the landlord an expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof purported not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but but also to co-relatively give special benefits and protections to tenants tinder certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or the other party deprived of his rights under the law (vide Maxwell page 285, 11th Edition)." The right, therefore, has had become vested right. 26. I may here refer to some cases in support of my view. First of all I shall refer to the opinion of Qadeeruddin Ahmed, J., (as he then was) in Nabi Ahmed and another v. Home Secretary, Government of West Pakistan Lahore and 4 others (2), wherein the Honourable Judge while noting the difference between procedural and substantive laws at page 613 of the report observed as follows :- "24. People do not mind changes in law, if only the procedure is altered without altering the substance of the law. True, it is not easy to draw a line between substantive and procedural law, but the task is not {{FOOT NOTE}} (1) PLD 1967 SC 530 (2) PLD 1969 SC 599 {{FOOT NOTE}} ' impossible if the essential difference is kept in mind. According to Salmonds Jurisprudence, 12th Edition of 1965 at page 128 :- "The law of procedure may be defined as that branch of the law which governs the process of litigation. All the residue is substantive law, and relates, not to be process of-litigation, burto its purposes of subject-matter." ' Thus : "A right of appeal, a right to give evidence on one's own behalf, a right to interrogate the other party', 'rules defining the remedy ... . As those which define the right itself, `that part of criminal law which deals, not with crimes alone, but with punishments also, as the measure of liability and many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules of substantive law." ' And as such must be treated as falling within the classification of substantive law. In this category has been included by this Court the charge of forum: "If in the process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice." ' While dealing with the question of vested right in paragraph 29 of the report the learned Judge observed as follows :- "29. What is a vested right ? According to Oxford English Dictionary, "vested" means "clothed, robed, dressed, especially in ecclesiastical vestments Vested rights Issentially differ from rights which are contingent that is, completely created vested interests may perhaps be defined as rights based not upon contract but upon custom". A close examination of these meanings and explanations
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reveals that a vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may be exercised. Those occasions and circumstances do not constitute contingencies, but are the peculiar characteristics of those rights. For instance, the right to cross-examine (not to re-cross-examine) a witness is a vested right, although the occasion for exercising it arises only if the witness says or has said something unfavourable and often after his examinationin-chief is over. The occasion to cross- examihe may not arise or may not be exercised but the right is not to be denied. The following discussion of the connotations of "vested rights" by J..G. Sutherland in his book on "Statutes and Statutory Construction", Vol. 2, Article 2205, is helpful in clarifying the above though. "it is impossible to assign, precise meaning to the term (vested right) for any attempt results only in conflict in the decisions. By "vested rights" can be meant no more than those rights whist under particular circumstances will be protected from legislative interference (unless it is clearly intended). But as it is a right which vests upon equities, it has reasonable limits and restrictions : it must have some regard to the general welfare and public policy, it is not a right which is to be examined, settled and depended on a distinct and separate consideration of the individual case, but rather on broad and general grounds which embrace the welfare of the whole community and which seek the equal and impartial protection of the interest of all." The observations go to the core of the problem with remarkable directness. Their central idea is equally well the essence of the doctrine which is the subject of this discussion, that is, the statutes are presumed to be applicable to cases and facts which came into existence after they are enacted, unless there is a clear intention to give them retrospective effect." 27. I may also here refer to the case of Mian Rafiuddin and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (I), wherein M. R. Khan, 3., at page 298 of the report dealt with the vested rights, an accrued right or a substantive right. He observed as follows "A 'vested right', an accrued right 'or a substantive right' does not mean only title to property or office ; a right, benefit or an advantage conferred by a statute, if availed of by doing a thing as required by the statute, is also a right of this kind Again, if a right, benefit or advantage conferred by a statute is dependent on the happening of a contingency, then, the same becomes a 'vested or accrued right' after the contingency has happened. This can be illustrated by giving some instances for example, a co-sharer's statutory right to pre-empt the land…
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