P L D 1953 Sind 20 (PLP)

MUHAMMAD BAKHSH, J.‑On 28th March 1947, the Sind Rent Restriction Act X of 1947, was passed. Subsection (5) of section 1 of this Act provided that the Act shall be in force for a period of one year from its commencement, but the Pro vincial Government may, by notification in the Official Gazette, extend its operation for successive periods of one year at a time. The enactment was thus being kept alive from time to time by requisite notifications till 3rd March 1952, when the Pakistan Federal Court ruled by their judgment in the case of Sobho Gyanchandani v. The Crown reported in (P L D 1952 F C 29), that the power granted to the Provincial Government to extend the operation of the Act by means of notifications was in the nature of delegated legislation and was thus ultra vires of the Constitution. After this pronouncement by the Federal Court, the Constituent Assembly of Pakistan passed Act XXXVII of 1952 to amend the Sind Rent Restriction Act, 1947, in its application to the Federal Capital. It is necessary to reproduce this short Act here :‑ "Whereas it is expedient further to amend the Sind Pent Restriction Act, .1947 (Sind Act X of 1947), for the purposes hereinafter appearing. It is hereby enacted as follows :‑ 1. (1) This Act may be called the Sind Rent Restriction (Amendment) Act, 1952. (2) It extends to the Capital of the Federation. (3) It shall come into force at once.

2. In section 1 of the Sind Rent Restriction Act, 1947, for subsection (5) and the proviso thereto, the following shall be substituted and shall be deemed always to have been substituted, namely :‑ "(5) This Act shall come into force at once ; and the said Act shall have and shall be deemed always to have had effect accordingly." A plea has now been raised in this suit by the defendant's Advocate Mr. Sharifuddin, that the Sind Rent Restriction Act had ceased to exist in Karachi and therefore this suit, which is based on some orders passed under the Act in ques tion, is not maintainable according to law. A separate issue was raised in the case which runs as follows :‑ "2. (a) Has the Sind Rent Restriction Act ceased to exist in Karachi? If so, is the present suit maintainable?" It is on this issue that I have now to give my finding and reasons. I have heard the parties' advocates fully and I am of the opinion that the Sind Rent Restriction Act, 1917, in spite of Act XXXVII of 1952 passed by the Constituent of Pakistan to amend the Act of 1947, is no longer in Karachi and therefore this suit is not maintainable. My reasons are as follows :‑ In view of the ruling of the Federal Court, the Act of 1947 which was passed on the 28th March 1947, was valid up to the midnight of 27th March 1948. Thereafter it died its natural death. The subsequent extensions of the Act were clearly held to be ultra vires. This being the position, the Act. of 1947 was no longer in existence and therefore no legislation could be undertaken to amend the same. The long title of' the Act of 1952 shows that that Act was passed further to' amend the Act of 1947. The preamble of the At says : "Whereas it is‑ expedient further to amend the Sind Rent Restriction Act, 1947 for the purposes hereinafter appearing ;" Even the short title of the Act is "The Sind Rent Restriction (Amendment) Act, 1952". In my opinion the Act of 1947 being originally a temporary measure had expired on the midnight of 27th March 1948 and therefore there remained nothing in 1952 for the Legislature to amend. I do not for a moment dispute the authority of the Legislature to re‑enact the same law and make it immediately applicable, just as the Governor of Sind has ‑done in the case of the Sind Maintenance of Public Safety Act V of 1952. This Act was also passed on 15th March 1952, twelve days after the Pakistan Federal Court gave their decision referred to above. A look at Sind Act V of 1952 will show that the entire Sind Safety Act of 1948 was repro duced and provision was further made therein to give retros pective effect to the Act and to the actions taken under the Safety Act of 1948 from the date of its natural death till 15th March 1952. The Central Legislature therefore could have likewise re‑enacted the same Rent Restriction At as a new law. I am fortified in my opinion by several rulings of various High Courts. The Allahabad High Court in the Full Bench case of Ram Kishan v. State reported in (A I R 1951 All. 181), remarked as follows :‑ "If the Principal Act be deemed to have expired on 30th September 1947, as was laid down in section 1(4) of the Act, neither the Ordinance which was promulgated on 25th September 1948, nor the Act which came into force on 15th December 1948, would keep it alive or continue its opera tion beyond 30th September 1947, and this is so for two reasons : (i) Neither the Ordinance nor the Act purports to have retrospective effect as both of them proceed expli citly on the footing that the Act was alive till the date of their own enactment. (ii) Neither of them purports to revive an enactment which had already ceased to be operative. Furthermore, "to continue" by means of a new enactment, the life of an old enactment, which, exhypothesi, has ceased to be operative long before the new enactment came into existence is something in the nature of a contra diction in terms. It is certainly possible that a new Statute may explicitly and in clear terms provide for what may be described as "continuance" of an old expired Statute, but that would, in the eye of law, amount to a fresh enactment of the provisions of the old Statute and in absence of any thing in the new Statute which may give it retrospective effect, the provisions of the old Statute in such a case, again, have effect only from the date of the enactment of the new legislation onward." In the case of Fenton Charles Aubrey v. Kathleen May Aubrey reported (A I R 1947 Lah. 414), it was observed as follows:‑ "Section 30 does not affect section 6 which applies to Acts or Regulations of a permanent character which are repealed by subsequent enactment and not to an enactment which automatically lapses because the period for which it was enacted has come to an end. Section 6 has, therefore, no application to Indian Courts (Burma Jurisdiction) Act and the fact that this Act was repealed by a subsequent enactment is not material, as with the termination of the war period the Act died its natural death and it was not necessary to repeal it." We have an important case of Kalyanam Veerabbadrayya (A I R 1950 Mad. 243), wherein it has been held on similar facts that the new Act was ultra vires. Their Lordships observed as follows:‑ "Acts may be classified with reference to their duration into permanent or perpetual Acts and temporary Acts. A perpetual Act is of unlimited duration and continues in force for ever unless repealed or altered, while a temporary Act continues in force during a fixed period or until repealed earlier . . . . . An amending Act is not an independent Act but an Act passed with a view to effect an improvement or to more effectively carry out the purpose for which the original law was passed. To remove doubts by a declaratory Act, there should be in existence an Act, the doubts in which have to be removed. If the Act had already ceased to be in force, a declaratory Act would have no operation. An amending Act also presumes the existence of an original Act. If the original Act, which was a temporary Act, termi nated after "the lapse of time, the amending Act would be inoperative." In the case of Jatindra Nath Gupta v. Province of Bihar (A I R 1940 (F C) 175), the following important observations were made :‑ "Unless the Act was revived, no amendment made in it could be of any effect. The only apt manner of reviving the expired Act was by enacting a fresh statute or by enacting a statute expressly saying that that Act is herewith revived

It is certainly competent to the Legislature in exercise of its plenary powers to revive or re‑enact a legis lation which has already expired by lapse of time. The Legislature is also competent to legislate with retrospective effect ; but neither of these things seems to have been done in the present case. The Legislature proceeds on the foot ing that the old Act was alive at the date when the new Act was passed, and the new Act merely purports to amend one of he provisions of the old Act. There could be no amend ment of an enactment which is not in existence and from the fact that the Legislature purports to amend an Act, it could not be held as a matter of construction that the intention of the Legislature was to renew a dead Act or make a new enact ment on the same terms as the old with retrospective effect. In the book "Interpretation of Indian Statutes" by Jagadish Swarup, the learned author has made the following important observations on pages 374‑376 and 377: "Every statute for which no time is limited is called a perpetual Act and continues in force till it is repealed. If an Act contains a proviso that it is to continue in force only for a certain specified time, it is called a temporary Act. "A temporary Act comes to an end for all purposes at the end of the period for which it is enacted . . . .There is a difference between temporary statutes and statutes which are repealed, the latter (except so far as they relate to transactions already completed under them) become as if they had never existed ; but with respect to the former, the extent of the restrictions imposed and the duration of the provisions, are matters of construction . . . . . Once a temporary Act ceased to be in operation, because the period mentioned in it had passed if the measure has to be brought into ope ration again, fresh legislation must be resorted to.' In the book "Law in the Making" by Allen, we find the following observations of the learned author at pages 450 and 453 :‑ "Once having come into operation, the statute remains effectual until repealed or, if it is a temporary statute, until it has expired. The repeal may be express or implied. A distinction is to be drawn between repealed and expiring statutes. A certain number of Acts are, for one reason or another‑e.g., to meet a special emergency‑valid only for a certain limited period, and are known as temporary Acts. The most familiar example is the Army (Annual) Act, which, as every student of constitutional Law knows, has a long history behind it, it dates back to the Mutiny Act of 1689 and is an echo of the great controversies which grew out of `keeping a standing army in time of peace'. It is now, effect, a permanent enactment, but by constitutional convention it is re‑enacted every year. Other less funda mental statutes, being chiefly of an experimental nature, are given effect for a year only; if their usefulness is exhausted at the end of that time, trey lapse automatically: otherwise they are renewed by an Expiring Laws (Continuance) Act, and each year a rather curious assortment of laws is given a fresh lease of life in this manner. In view of all these reasons it is clear to my mind that the amending Act. 1952 which was intended to amend the Sind Rent Restriction Act, 1947, was void and of no effect, be cause the Act of 1947 itself had already expired and was no longer in existence. Any action therefore proposed to be taken under the Act of 1947 as amended by the Act of 1952 will be ultra vires and illegal. I hold on this issue accordingly. As a result of my finding on this issue, it is not necessary now to decide the other issues. The suit is clearly not main tainable. I accordingly dismiss the suit with no order as to costs. A. H. Suit dismissed.