1995 PLP 1054 (MLD)

Section 6 before its omission read as under: "6. Tenure of tenancy.‑‑‑No tenancy shall, at a time, be valid beyond such period as the landlord and tenant have, by mutual agreement, fixed before or after the commencement of the tenancy." Provided that nothing in this section shall affect any tenancy existing immediately before coming into force of the Ordinance. In consonance with this provision of law clause (i) of subsection (2) of section 15 of the Ordinance provided among other grounds that Controller shall make an order directing the tenant to put the landlord in possession of the premises if he was satisfied that the tenancy had ceased to be valid under section 6. In support of his contention, Mr. Zaidi has referred to Hansraj v. Mrs. Zahida Ali (1987 MLD 179) and Waris Imam v. Kanwar Maqsood Ali Khan (1987 MLD 877), while learned counsel for the respondent has relied upon Khushiram Atmaram Jaisinghani and others v. Custodian of Evacuee Property, West Pakistan and Karachi and others (PLD 1965 SC 453) and Abdul Sattar v. Muhammad Umar (1989 CLC 469). In the first case cited on behalf of the appellants it was held by a learned Judge of this Court that right to seek eviction on expiry of fixed term of tenancy conferred by section 15(2)(i) of Ordinance XVII of 1979. ceased to be operative by reason of its deletion by Ordinance IV of 1984 without providing for any saving. When the clause conferring right of eviction was deleted and proceedings under the clause were pending on date of such repeal, landlord would have no accrued right to survive the repeal of section 15(2)(i) of Ordinance (XVII of 1979) and pending proceedings would not be saved. In Waris Imam's case decided by the same learned Judge it was held that Rent Controller would be competent to pass eviction order on the group of such expiration alone before the omission of the above provisions. In other words extra‑judicial termination or determination of tenancy would not, lay itself, divest a tenant of his status which cannot be put to an end except by a judicial order passed on certain specified grounds provided under sections and 15 of the Ordinance and does not come to an end in any of the way mentioned in section 111, Transfer of Property Act, like efflux of time, or by service of a notice. In Khushiram Atma Ram case with reference to section 6 of clause (c of the General Clauses Act, it was held that clause (e) refers to "such right privilege etc., as aforesaid" and this refers to clause (c) in accordance with which any "right, privilege, obligation or liability which has already accrued has been accrued" remains unaffected. In the application of clause (e) therefore there has first to be a right and then a legal proceeding in respect of such right. This does not appear to be applicable to a case where the only possible rights which can be said to have accrued is the right to prefer a particular leggy' proceedings. From its wording clause (e) would apply to legal proceedings in respect of substantive rights which have already accrued under the repealed enactment and would not cover a case where only a procedural right is granted. In Abdul Sattar's case, a learned Single Judge of this Court dealing with the repeal of sections 6 and 15 (2) (i) of the Ordinance during pendent, of proceedings held that repeal of section 6 was neither retrospective nor J matter of procedure. It was held that landlord was entitled to relief in view c agreement of tenancy despite repeal of section 6. For proper understanding and analysis of the legal position it i necessary to refer to section 6 of the General Clauses Act, 1897. The relevant provision reads as under: Section 6. Effect of repeal.‑‑‑Where this Act, or any (Central Act) o: Regulation made after the commencement of this Act, repeals an: enactment hitherto made or hereafter to be made, then, unless ~a different intention appears, the repeal shall not‑‑‑ (a) ..................................................... (b) .. (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 committed 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; forfeiture or punishment may be imposed as if the repealing Act, or Regulation had not been passed. A glance at the above‑referred provision of law would reveal that the right accrued to a party on the date of repeal of section 6 of the Ordinance would remain intact and unaffected notwithstanding the circumstance that there is no express provision in the repealing Ordinance saving the pending proceedings. A right to seek eviction of a tenant on the ground of expiry of tenancy would thus be protected and saved in spite of repeal of section 6 of the Ordinance. In Hansraj case referred to above, learned Single Judge was influenced by the circumstance that the repealing Ordinance did not provide for any saving in respect of the pending proceedings. In Waris Imam's case neither the provisions of section 6 of the General Clauses Act nor Division Bench judgment of this Court in the case of Muhammad Bachal v. Deputy Rehabilitation Commissioner, Hyderabad and others (PLD 1962 (W.P.) Kar. 889) and the judgment of the Supreme Court in the case of Idrees Ahmad and others v. Fida Ahmad Khan (PLD 1985 SC 376) dealing with the effect of repeal of a statute were considered. In the Division Bench judgment it was ruled that the general principle is that where a statute affects existing rights its provisions are not to be held as retrospective in operation, unless a clear intention to the contrary is manifest. In the Supreme Court case dealing with effect of repeal of a statute in terms of clauses (c) and (e) of section 6, General Clauses Act their Lordships of the Supreme Court held that right of appeal given under repealed enactment is such a right which survives the repeal unless repealing enactment either expressly or by necessary implication curtails such right in any manner. The proposition that all the rights to remedy by way of appeals or otherwise under an enactment stand vested and accrued in the litigating parties on the date of the commencement of the lis is, therefore, not open to challenge, unless of course the repealing enactment either expressly or by necessary implication, curtails such rights in any manner. It may be observed that the ejectment application against the appellant Bank was filed on 9‑4‑1984 whereas the repeal took place w.e.f. 8 30‑7‑1984. On the date of institution of the ejectment application, thus respondents had a right to seek ejectment which could not be defeated as the amendment brought by the legislature was not retrospective in operation Even by necessary intendment or implication it could not be validly said that the amendment brought all pending proceedings to an end with the repeal of section 6 of the Ordinance. Respectfully following the rule laid down in the Division Bench judgment as well as the Supreme Court authority, I see no merit in the contention raised on behalf of appellant that the respondents could not seek eviction on the ground of expiry of tenancy after the repeal of sections 6 and 15 (2) (1) of the Ordinance. There is, however, another aspect of the matter, namely, the proviso to section 6 of the Ordinance as it stood before its repeal. This provision is in the nature of an exception to the rule contained in section 6 of the Ordinance. The exception is to the effect that this section shall not affect any tenancy existing immediately before coming into force of this Ordinance. The Ordinance came into force w.e.f. 21st November, 1979 before which date relation between landlords and tenants were regulated by the provision of West Pakistan Urban Rent Restriction Ordinance, 1959. Tenancy in favour of the appellant Bank, however, commenced in March, 1954 which was renewed from time to time. There was a valid and continuing tenancy agreement between the parties on the date of enforcement of this Ordinance which would bring the case within exception clause. Since there was a valid tenancy exiting immediately before coming into force of the Ordinance, it would, therefore, be immaterial whether section 6 of the Ordinance remained intact or was repealed and the entire discussion thus becomes of academic nature. For this reason, respondents could not press this ground into service for ejectment of the appellant Bank and I hold accordingly. Adverting to the ground of personal requirement, it would appear from a narrative of this judgment that the respondent had informed the appellant Bank as far back as January, 1981 followed by subsequent letters and absence of renewal clause in the lease agreement that the lease would not be extended beyond 15‑3‑1984 as they needed the premises for their own use and for use of their family members. Respondent Sultan Ali as. well as his daughter Mst. Zohra Begum in their evidence have demonstrated their bona fide need requirement of the premises for opening a departmental store in the premises. No doubt, respondent Sultan Ali admitted that he is running a Printing Press and that he has no intention to close down the said business but he categorically stated that the demised premises are needed for opening a departmental store. He has two sons, namely, Abdul Rehman and Feroze who are partners with him in the press while his daughter Mst. Zohra Begum is employed with Jaffar Brothers. The fact that his sons are his business partners in the Printing Press would not be sufficient to deprive them of their plan to open a departmental store in the premises. Even daughter of the respondent, namely, Mst. Zohra Begum stated that she had no place to start her business and therefore, she was compelled to serve initially in Agha Khan Hospital and that she would start departmental store in the premises with help, of her brother Feroze Sultan Ali Sajan. Learned counsel for the appellant Bank strenuously contended that both the sons as well as daughter of the respondent were well set and did not need the premises for their own use but in the context of overwhelming evidence on record, I am unable to agree with this view. Bona fides of the respondents can be inferred from the circumstance that in early 1981 they had decided to have the premises vacated in March, 1984 in order to settle their children in the disputed premises. There is no circumstance to indicate that their demand and requirement was tainted or motivated by bad faith. No other circumstance has been pointed out to show that the requirement of the respondents was not bona fide or that they did not need the disputed premises for their own use in good faith. There is plethora of authorities in favour of the view that landlord is the best judge to determine the manner in which he should use his property. In my view, respondents have established their need and requirement for the premises in good faith beyond any shadow of doubt and in fact no restriction can be placed on their fundamental right to enjoy their properly to the best of their choice. There is thus no merit in this appeal which is hereby dismissed. In view of the commercial nature of the business undertaken by the appellant Bank, I would direct that they shall hand over vacant possession of the premises on or before 1st July, 1995. H.B.T./C‑334/K Appeal dismissed.