P L D 1960 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.-This is a certified appeal from the judgment of a Karachi Bench of the High Court of West Pakistan setting aside, in the exercise of writ jurisdiction, an order by the Rent Controller, Karachi., requisitioning a part of the building known as the Paradise Hotel. The premises in question were held by the firm Muhammad Ali & Sons on a long-term lease, the deed of lease having been executed by one of its partners Mr. Abdul Aziz. A part of the first floor and the whole of the second floor were leased out by Muhammad Ali & Sons to the Pakistan Industrial Development Corporation for a period which expired on the 31st December 1955. On the 30th September 1955, Muhammad Ali & Sons served on the Pakistan Industrial Development Corporation a notice terminating the lease from the commencement of the year 1956. In compliance with this notice the Corporation vacated the premises. On 27th December 1955, however, the Rent Controller, Karachi, issued an order under section 3 (1) of the Sind (Requisition of Land) Act, 1947, directing Messrs Muhammad Ali & Sons to place the premises at the disposal of the Estates Officer, Government of Pakistan, because they were required for the accommodation of the Central Government. Messrs Muhammad Ali & Sons appealed from this order to the Chief Commissioner and a few days later viz. on the 3rd January 1956, applied to the High Court for the issuing of a writ of mandamus against the Chief Commissioner, Karachi, and the Federation of Pakistan requiring them to abstain from ejecting the applicant. After hearing the parties the learned Judges of the Division Bench accepted the application and held the order of requisition to be illegal and inoperative. The Sind (Requisition of Land) Act has a history. It was originally passed by the Sind Legislative Assembly in 1947 and was immediately applied to the City of Karachi. It was sub sequently amended and a new provision, section 3-A, was added for the assessment of compensation for the requisitioned property. In Miran Khan v. Meharban Hussain, (P L D 1956 (W. P.) Kar. 338) Rehman, C. J. and Lari, J. held that since the Act did not provide specifically for compensation to dispossessed tenants, it was pro tanto ultra vires. In Mrs. Dina Sohrab Katrak v. S. Ashhad Ali and the Chief Commissioner of Karachi (P L D 1956 Sind 331) another bench of the same Court ruled a few months later that the requisitioning of property under section 3 (1) of the Act for providing residential accommodation to Government servants was illegal and ultra vires. As the Governor-General, who was responsible for the administration of the Federal Capital, felt that these two decisions had practically nullified the Act, he, in exercise of the authority purporting to be derived by him from section 290-A of the Government of India Act, issued an Order, Governor-General's Order I of 1956, which professed to have come into force from 21st June 1947, though it was promulgated on 23rd March 1956. By this Order "public purpose" was defined as including the securing of accommodation for the residence of servants of the Govern ment or the Members of the Constituent Assembly of Pakistan and section 3-A of the Act was repealed. The Order made some other amendments in the Act but these are not material for the purposes of the present case. Relying on the aforesaid judgments of the High Court and being of the opinion that the words "with respect to the laws which are to be in force in the area" in clause (c) of subsection (2) of section 290-A of the Government of India Act, can only mean laws which are prospective in their operation the learned Judges have held the amendments made by the Governor-General's Order as invalid and have vacated the order of requisition. The result of this appeal depends upon whether the two cases in which the Act of 1947 was held to be invalid by the High Court were rightly decided and if so whether clause (c) of subsection (2) of section 290-A of the Government of India Act empowered the Governor-General to make retros pective amendments in the Act. A general question also arises in the appeal, namely, whether under clause (c) the Governor General had power of plenary legislation or whether his Power was limited to only declaring as to what laws were to be in force in the Federal area. It seems to us that it is not necessary to decide this general issue because even if it be held that the Governor-General had no such plenary power, it will not affect the decision in the case, because on that assumption section 3-A which was repealed by the Governor-General's Order shall have to be treated as not having been repealed, and if we hold that both the judgments of the High Court declaring the Act or a part of it to be invalid were wrong in law, the judgment of the High Court in the present case will have to be set aside and the order of requisition given full effect. Now if section 3-A which was repealed by the Governor-General's Order is an existing provision, the Act cannot be held to be invalid merely because there is no specific provision in it making compensation payable to lessees. That section is as follows :

"3-A. (I) Where any immovable property is requisitioned under the provisions of this Act, there shall be paid compen sation which shall consist of a fair rent of the property determined by the Controller in accordance with the provisions of the Sind Rent Restriction Act, 1952. (2) A person aggrieved by an order of the Controller made under subsection (1) may within 15 days of the order appeal

(a) . . . . . . . . .. (b) . . . . . . . " The section enjoins that compensation for the requisitioned property shall be paid, but it is silent as to the person to whom it is to be paid. It neither mentions the owner nor the lessee for a fixed period whose lease has not determined nor the mortgagee in possession as the person to whom compensation is to be paid. It is true that the section provides that the amount of compensation shall be the amount of fair rent calculable under the Sind Rent Restriction Act, but that does not mean that such compensation shall only be paid to the owner. In our opinion there is nothing in section 3-A to prevent the Controller from paying compensation to the tenant whose tenancy has not terminated when the requisition is made or to the mortgagee in possession, who till the redemption of the mortgage is entitled to hold the requisitioned property. Apparently the Controller is to pay compensation to the person who was entitled to retain the possession of the premises but whose possession was termi nated by the requisition. If the owner was in possession the compensation has to be paid to him. If some one else was in lawful possession of the property, the compensation has to be paid to him until his right to hold the property terminates and the owner is entitled to resume possession. We do not, therefore, think that in Miran Khan v. Meharban Hussain the High Court was right in holding the Act of 1947 to be invalid. Nor have we any doubt that the Controller having requisitioned the property for the purpose of its being placed at the disposal of the Estate Officer for the accommodation of the Central Government he requisitioned it for a "public purpose" within the meaning of section 2 (f) of the Act before its amendment by the Governor-General's Order of 1956. A Government can function in a place only if its servants can find residential accommodation for themselves in that place. If Government has no residential accommodation to provide and the servants being unable to find accommodation for themselves by private treaty, the Government arms itself with power to acquire houses for them, the acquisition in exercise of such power must be held to be for the purposes of Government. Accommodation acquired for the residence of Government servants therefore is as much for Government purposes as acquisition for the location of Government offices. In this view of the matter Mrs. Dina Sohrab Katrak v. S. Ashhad Ali and the Chief Commissioner, Karachi, also does not appear to us to have been rightly decided. The mere fact that an earlier and less effective Act, Sind Act V of 1947, specifically deals with the requisitioning of house accommodation for Government servants and provides a different procedure for the purpose cannot have the effect of excluding the power to requisition private property for Government servants' residence under a later Act which not only in its scope and purpose but in its language is wide enough to embrace such power. We see no merit in the contention raised before us that the Controller should have proceeded under the Karachi Hotels and Lodging Houses Act, 1950, and not under the Act of 1947. What was needed by the Controller was a building for residence and not accommodation at a running hotel. The provisions of the Hotels Act were therefore not attracted at all. The result therefore is that if the retrospective amendment of the Act of 1947 by the Governor-General's Order was valid, the appeal admittedly succeeds. On the other hand if the amendment be supposed to be invalid and both the judgments of the High Court cited above be held to have been wrongly decided, no valid objection against the requisition can be put forward. We allow this appeal reverse the judgment under appeal and discharge the writ. Parties will bear their own costs. CORNELIUS, J.-I agree with my Lord the Chief Justice that this appeal should be allowed, that the judgment under appeal should be reversed and the Writ issued by the High Court should be recalled. As we are disagreeing with the view of the Court below, which itself proceeds on the basis of two earlier reported decisions of the same Court, it is desirable that I should express my dissent from these judgments in my own words. The first of the precedent cases to be considered is reported as Mrs. Dina Sohrab Katrak v. Mr. S. Ashhad Ali (P L D 1956 Sind 331) Reversing an earlier decision of a Single Judge of the same Court, the Division Bench held that the provision of accommodation for the private residence of officers of the Central Government is not within the expression "securing of accommodation for the Central Govern ment of Pakistan", which expression occurs in the definition of the term "public purpose" as used in the Sind (Requisition of Land) Act, 1947. In the opinion of the learned Judges these words i.e. "securing of accommodation for the Central Government" did not "convey the idea of providing residential accommodation to Government servants", but must be understood to mean "the providing of a place connected with the discharge of the functions of a Government". 'They referred to the provisions of the Sind Crown Servants (House Accommodation) Act (V of 1947), which had been passed by the same Legislature some four months earlier, and by reference to the detailed provisions of the earlier Act, they came to the conclusion, while accepting the maxim that the later Act abrogates the earlier contrary Act, that :

"If it was really intended that the earlier Act should in this respect be repealed, we would expect an express mention of it, for the matter must be present to the mind of the Legislature. There should in any case be some indication that there was an intention of overriding the provisions of the earlier Act relating to residential accommodation. It is a well-recognised rule of interpretation that statutes are to be interpreted as far as possible consistently with each other. In fact, if we read the two Acts side by side, little doubt would be left that they deal with two separate fields". Now, the earlier Act in its preamble made it clear that its purpose was to provide house accommodation for persons serving in connection with the affairs of the Province of Sind and holding certain offices. For the purpose of defining such persons, use was made of the expression "Crown servants" and the definition of this expression makes it clear that the reference to "certain other office holders" was to be confined to (a) Ministers of Crown, (b) the Speaker of the Sind Legislative Assembly, (c) Parliamentary Secretaries, and (d) Members of the Sind Legis lative Assembly. The Sind Provincial Government and its Legislative Assembly are no longer in existence, and again, the Act was passed at a time when it is doubtful whether it was within immediate contemplation that there would be resident in Karachi any "Ministers of the Crown" and any "parliamentary Secretaries" other than Ministers and Parliamentary Secretaries attached to the Sind Government and Legislature. Consequently, it may be safely held that the scope of the earlier Act was confined to providing house accommodation for the Ministers of Sind, and the Members of the Legislative Assembly among whom would be included the Speaker and the Parliamentary Secretaries, in addition to servants of the Provincial Government, The later Act however was of date the 2nd August 1947, by which time it had become clear that Karachi was to be the Capital of the new State of Pakistan, and when this Act authorised the Provincial Government to requisition and acquire property for any public purpose, defining "public purpose" as "any purpose connected with the securing of accommodation for the Constituent Assembly, the Central Government of Pakistan or the Provincial Government", it clearly made a provision whose scope was far beyond that to which the purposes and provisions of the earlier Act were confined. In the view of the High Court how ever, the new Act although it increased the scope of the powers of requisition vested in the Provincial Government, yet restrained that Government from utilizing those powers for the specific purpose of providing residential accom modation for any persons, whether they be connected with the Constituent Assembly or the Central Government of Pakistan or the Provincial Government. If the earlier Act had contained provisions for securing accommodation for officials of the Constituent Assembly or of the Central Government, the argument which has been accepted by the High Court might have received appreciable strength, but the statutes standing as they are, it seems to me that the scope and meaning of the expression "public purpose" as used in the later Act cannot be ascertained by reference only to the earlier Act. The proper course in arriving at the true construction of this expression is, firstly, to gain a true appreciation of the meaning and scope of the expres sion "public purpose" generally in relation to the subject of compulsory acquisition of land, and thereafter to consider whether, having regard to all the purposes to be satisfied by the later statute, the provision of residential accommodation for officers of the Central Government was not within the meaning. There are many statutes and instruments in which the expression "public purpose" occurs, and precedents as to the interpretation placed upon these words could no doubt be multiplied. For the purposes of this judgment, it will be sufficient for me to refer firstly to the Land Acquisition Act, 1894, which employs the expression "public purpose" in a very wide sense, and restrains the powers of the Government to acquire private property compulsorily. The Act does not define the expression "public purpose" exhaustively. It merely states that this expression shall include the provision of village sites in districts where it is customary for the Government to make such provision. It is obvious that the omission to define "public purpose" exhaustively is intentional, for it is impossible to place any limit upon the purposes which, in the light of the exercise of govern mental power over large territories and populations, in respect of the multifarious activities which go into the establishment and operation of a thorough system of administration, would fall within the meaning. Where the question is raised under the Act whether in making a compulsory acquisition for a particular purpose, the Government is acting within its power, that question must be examined and decided in relation to .the facts of the case. That would be necessary also where the governing instrument is non-statutory, and the term "public purpose" is used in a wide and general sense. Next, I propose to refer to two precedent cases. The first is that reported as Hamabai Framjee Petit v. The Secretary of State for India (42 I A 44). That was not a case under the Land Acqui sition Act, 1894, but it involved the interpretation of the expression "public purpose" occurring in an instrument of lease and a sanad by which certain land had been demised by East India Company as far back as 1854 for a term of 99 years. There was a clause providing for resumption of the land in case the said Company "shall, for any public purpose, be at any time desirous to resume possession of the premises" and it was this power which the Government of Bombay had affected to exercise, stating as their reason that they proposed to utilize the land for the residence of Government officers. The following brief passage from the judgment of Lord Dunedin explains the situation with clarity :

"The Government gave notice in both cases to resume for a public purpose. On being challenged as to what that public pur pose was, they explained that they wished for the ground in order to erect dwelling, houses, which they could offer to Government officials at adequate rents for their private residence. Suitable houses for Government servants are not easily obtainable in Bombay; but it is not said that obtaining quarters of some kind is an impossibility. The whole question, therefore is; Is such a scheme a `public purpose' within the meaning of the contracts contained in the lease and the sanad." The judgment continues with the statement that the argument against the resumption was that "there cannot be a `public purpose' in taking land if that land when taken is not in some way or other made available to the public at large" and the Judicial Committee expressing their disagreement with this view, approved the statement in the judgment of the Bombay High Court that "public purpose" should be understood to include any "purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned." The question remaining was to consider whether the particular purpose mentioned in the case was one in which the general interest of the community was concerned and after observing that the Government were "good judges of that" but not "absolute judges," their Lordships of the Judicial Committee remarked that all the Judges, in India, who were thoroughly conversant with the conditions' in India, had said that they were "satisfied that the scheme is one which will redound to public benefit by helping the Government to maintain the efficiency of its servants." That reason commended itself to their Lordships and they accordingly held that the resumption was good. The second case to which I wish to refer is reported as Secretary of State v. N. Gopala Aiyar (A I R 1930 Mad. 798) decided by a Single Judge of the Madras High Court. There, the land in question had been acquired for the purpose of providing house sites for the panchamas and other coolies of Tanjore. The learned Judge held that the provision although it directly benefited the panchamas also indirectly benefited the public at large. He thought that the purpose would be a public one even if only a section of the public were benefited, and referred to the case of Hamabai Framjee v. Secretary of State cited above. When it was argued that the effect of the Government order was to enable it to acquire a particular house site for a particular individual, the learned Judge refuted the argument by saying that that was a matter of detail which did not affect the general question of the purpose being a public one, and went on to observe as follows :

"What the Government proposes is to acquire the lands and once they are acquired, it may allot them in, such manner as it pleases. But it is obviously the most sensible and con venient course to allot to each servant that particular house which he has been occupying. How this renders the purpose any the less a public one I am unable to follow". The Madras case was under the Land Acquisition Act of 1894, and furnishes authority that the provision of residences for members of the cooly classes, even if it operates so that a particular residence is allotted to a particular cooly, is yet a public purpose. These two decisions, in my opinion, furnish ample authority for holding that the provision of residences is not by itself a matter falling outside the concept of a "public purpose" provided that it is part of a scheme for making general provision of that character. Secondly, the provision of residences for a particular class of persons, even though it may operate so as to provide a particular residence for a particular member of that class is also not excluded from the meaning of the expression "public purpose", nor does it make any difference whether the residences are for completely unprivileged persons like coolies, or for those enjoying the patronage of Government in the capacity of officers And the further conclusion which emerges from these decisions is that the provision of such residences may be included within the meaning of the expression, "public purpose" in the case of coolies because of the benefit o a whole class, and in the case of public servants for the reasons stated by their Lordships of the Judicial Committee, because of the public benefit which accrues from the fact of Government being assisted in maintaining. the efficiency of its servants. Therefore, if in the Sind (Requisition of Land) Act, 1947, the definition of "public purpose" had been as wide and vague as it is in the Land Acquisition Act, 1894, I would feel no difficulty, in view of the precedents available, and upon a general appreciation of the difficulties which faced the Provincial and Central Governments in the early days of Partition, in holding that the provision of residences for the very large number of legislators and officers of the Central Government who were to arrive in Karachi, was completely and wholly within the expression "public purpose". I have now to consider whether by using the expression "the securing of accommodation for the Central Government of Pakistan", the Legislature intended to exclude accommodation required for the residence of Central Government servants. These were to arrive in Karachi in very large numbers. A true answer to this question cannot be found merely by reference to the earlier Act which was confined to the provision of residential accommodation for the Legislators of Sind, for its Ministers, and for the officers of the Sind Government. In actual fact, a wholly new Central Government was to be established in Karachi, consisting of a new Head of State, the Constituent Assembly, a body of Ministers derived from the Constituent Assembly, and the vast number of officers, who among themselves and in a gradation of superior and subordinate constituted the Central Government as an integral unit. Having regard to the necessities, it is clear that to distinguish between the residential accommodation needed for all these persons, and the office accommodation required for their work, is to take too narrow a view altogether of the requirements which the later Sind Act was designed to meet. Therefore, I am clearly of the opinion that the expression "public purpose" in its general and wide sense, as well as in the much narrower sense of the definition contained in the Sind (Requisition of Land) Act, 1947 includes the provision of residences for Central Government servants, and therefore, with respect to the views of the learned Judges of the Division Bench which decided the case of Mrs. Dine Sohrab Karrak v. Mr. S. Ashhad Ali. I consider that they were wrong in their decision. The second case to be considered is that of Miran Khan v. Meharban Hussain (P L D 1956 Kar. 338). That case was decided by a Division Bench of the same High Court, and the particular conclusion reached therein which required consideration in the present case is the conclusion that the Act in question as amended in 1948 by the insertion of section 3-A which will be considered presently, was ultra vires of the powers of the Sind Legislature as controlled by section 299 of the Government of India Act, 1935 which was then the "Constitution Act". The following passage from the judgment states the argument and the conclusion with clarity :

"By Sind Act X of 1948, however, section 3-A was inserted in this Act which reads as follows :

'3-A. (1) where any immovable property is requisitioned under the provisions of this Act, there shall be paid compen sation which shall consist of a fair rent of the property determined by the Controller in accordance with the pro visions of the Sind Rent Restriction Act, 1947. (2) A person aggrieved by an order of the Controller made under subsection (1) may within 15 days of the order appeal- (a) in the City of Karachi to the Chief Judge, Small Causes Court. (b) elsewhere to the District Judge having jurisdiction in the area where the property is situated'. By this very amending Act the words "Requisitioned or" were directed to be omitted wherever they occurred in section 4 of the Act. The new section 3-A clearly and obviously implies that `fair rent' is to be the total compensation payable for requisitioned premises. This `fair rent' would be payable to the landlord and to nobody else. The Rent Controller who appeared before us admitted that this would be the case though he suggested that if a tenant who had been dispossessed applied to him for compensation he might determine what compensa tion he should get on general principles of natural justice. Obviously no share of the landlord's `fair' rent could be apportioned to the tenant as it would be an encroachment on the rights of the landlord and this was conceded by the Rent Controller. There is no escape from the conclusion conse quently in the face of section 3-A of the Act that in the case of requisition of immovable property the whole of the com pensation would go to the landlord and nothing would be left for the tenant. To the extent, therefore, that the Act makes no provision for compensating tenants in accordance with the provisions of section 299 of the Constitution Act, the Act is in my opinion ultra vires". It is relevant to note here that by the Validation of Laws Act, 1956, section 299 of the Government of India, Act, 1935, was amended by a section which replaced a portion of sub section (4A) by directing that certain words "shall be substituted and shall be deemed always to have been substituted for the origi nal words in that subsection. That subsection had itself been added in the year 1951. The relevant portion of the amended sub section (4A) for the purposes of this case is the following :

"Nothing in subsection (2) shall be construed to invali date

(a) any provision in any law of the kind referred to in that subsection which purports to fix the amount of compensation or to specify the principles on which and the manner in which compensation is to be determined and given on the ground that it contravenes the provisions of that subsection or that com pensation is not provided for or is inadequate; Provided that such law has been made or passed within a period of five years next after the establishment of the Federation". The amending law of 1948 clearly satisfied the condition of having been passed within five years after the establishment of the Federation of Pakistan. On the 23rd March 1956, the Consti tuent Assembly enacted the late Constitution of Pakistan, and included in the chapter of `Fundamental Rights' a provision that "no property shall be compulsorily acquired or taken possession of-save by the authority of law which provides for compensation therefore". This provision is found in subsection (2) of Article 15 of the late Constitution, but subsection (3) by the use of the following words, viz. "nothing in this Article shall affect the validity of any existing law" has the effect of saving laws which were in existence on the 22nd March 1956, from the invalidating effect of subsection (2) of the same Article. Neither the amendment in section 299 of the Government of India Act, 1935 nor Article 15 of the late Constitution of Pakistan was in existence at the time when the judgment in the case of Miran Khan v. Meharban Hussain was delivered. The action taken by the Rent Controller which forms the subject of the present appeal, relates to the last few days of 1955, and the present case was instituted on the 3rd January 1956, and decided on the 7th January 1957. The effect of the saving provision in Article 15 of the late Constitution was to bring the case on the point of the validity of the law in question within the provisions of section 299 of the Government of India Act, as it stood on the date when the impugned action was taken. As has been seen, the amendment of 1956 in section 299 was expressed to take effect from the time when subsection (4) (a) of that section was first inserted, and that took place in the year 1951, Consequently, the duty of the learned Judges in the High Court, in deciding the present case, was to examine it in the light of the amended subsection (4A) of section 299 of the Government of India Act. In proceeding on the basis of the judgment of Miran Khan v. Meharban Hussain where the question of the change in the law did not arise for consideration, they would appear to have fallen into error. . For, by the amendment in section 299, it was made clear that a law such as the Sind (Requisition of Land) Act 1947, as it stood after the amendment of 1948, could not be challenged for vires "on the ground that compensation is not provided for". On this ground it would seem that the decision in Miran Khali v. Meharban Hussain must be confined to its particular facts, in view of the change in the law which took place after it was pro nounced. Speaking with respect, I consider that even in relation to those facts, the judgment does not proceed upon a correct interpretation of the expression "fair rent" as used in the Sind Rent Restriction Act, 1952. The passage quoted from the judgment contains statements to the effect, firstly, that fair rent when assessed "would be payable to the landlord and to nobody else", and, secondly, that "no share of the landlord's fair rent could be apportioned to the tenant as it would be an encroach ment on the rights of the landlord". The second proposition is said to have the assent of the Rent Controller, who also seems to have claimed a power to compensate a tenant who had been dispossessed out of the compensation determined by him "on principles of natural justice". It is clearly not possible to hold the law to be valid if its validity were to rest upon a concessional act of that nature by a statutory authority. But equally the concession made by the Rent Controller with relation to the second proposition laid down by the learned Judges, viz. that it would be encroachment on the rights of the landlord to give the tenant any share out of the fair rent, would seem to be unsound. It seems to me that in making the observations quoted above, the learned Judges may possibly have overlooked the definition of "landlord" in the relevant Act, which reads as follows :

"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". In my opinion when the Sind (Requisition of Land) Act, 1947 laid down that the compensation for any immovable property requisitioned under the Act, should consist of a fair rent of the property determined by the Controller in accordance with the provisions of the Sind Rent Restriction Act, 1952, it necessarily made, by virtue of the definition of "landlord" quoted above, a provision that in a case of requisitioning of any property held by a tenant, the fair rent should be determined upon the same basis as if the tenant were sub-letting the premises. There would be of course no question of sub-lease, since possession would be taken under an order in exercise of the eminent domain of the State and the right of the person ousted would be only to receive compensation, but that compensation would fall to be assessed on the same principles as apply to a tenant sub-letting the premises, within the meaning of the Sind Rent Restriction Act, 1952. Nothing was said in that Act as to the continuity of the landlord- tenant relationship between the original landlord and the ousted tenant, and it must be presumed that that was intended to continue, subject to the Act. I conceive the position somewhat in this way. A tenant being under an obligation to pay Rs. 100 per month to his landlord, is ousted from the property by a requisition order, and under section 3-A of the Sind (Requisition of Land) Act, 1947, he is awarded compensation at the rate of say Rs. 80 per month. This would have been assessed by the Controller on the principles applying to the assessment of "fair rent" under the Act of 1952. The tenant thus being under an obligation to pay Rs. 100 per month to his landlord, but on the other hand being entitled to receive only Rs. 80 from the requisi tioning authority, would be entitled to move the authorities under the Act of 1952 for reduction of his rent, payable to the landlord, to Rs. 80 per month, after which the landlord would not be entitled to receive from such tenant any sum in excess of Rs. 80 per month. In the converse case, the compensation may be assessed at Rs. 120 per month, and in that case, it would be open to the landlord to move the Rent Controller under the Act of 1952 for an order enabling him to recover that amount per month from his tenant. The Sind (Requisition of Land) Act, 1947, refers differentially to owners and tenants and provides for ouster of tenants or other persons in occupation of requisitioned property. It does not appear to contain any provision which would have the effect, in the case of requisition of tenanted property, of altering the legal relationship of landlord and tenant which existed prior to the requisition. The requisition would effect alteration in the possession of the requisitioned property, followed by payment of compensation to the person immediately affected by such alteration, without touching in any way his obligation in respect of any third party e.g. a landlord. It may be that on this interpretation a tenant losing possession would not be provided with any compensation for losing the accommodation which is compulsorily taken away from him, but that would appear to be the purpose of the law i.e. that the compensation should be limited to the rental value, and should not extend to such ancillary matters as disturbance etc. The underlying policy might well be that the public interests being paramount, private interest must give way to them, and the compensation payable should, in the public interest be confined to the actual value of the right sequestrated, without allowing anything for the sacrifice of the subject who suffers by such sequestration. S. A. RAHMAN, J.-Certain premises situate in Karachi and in the possession of the first respondent, Muhammad Ali & Sons, were requisitioned by the Rent Controller, Karachi, under section 3 (1) of the Sind (Requisition of Land) Act, 1947, (here inafter preferred to as the Act). The purpose of the requisition was described to be the provision of accommodation for the Central Government. The validity of the order was challenged by a petition for a writ preferred in the High Court of West Pakistan. The petition was allowed by order, dated the 7th January 1957, along with several other similar petitions, their being common questions of law arising in all of them. The learned Judges, however, certified that a substantial question of law as to the interpretation of the Constitution was involved in the case such as would justify an appeal to this Court under Article 157, thereof. It appears that the premises belonged to one, Haji Sh. Ghulam Muhammad, from whom they were taken on lease by Ch. Abdul Aziz who is also a partner in the firm of Muhammad Ali& Sons. He seems to have further leased out the premises to this firm. Ch. Abdul Aziz had not been impleaded as a party to this appeal though Muhammad Ali & Sons were cited as a party through their Managing partner, Ch. Abdul Aziz. In order to have a complete adjudication of the dispute, Ch. Abdul Aziz was also impleaded as a party personally, by order of this Court, dated the 3rd of November, 1959. The learned Judges, who dealt with the matter in the High Court, pointed out that the validity of the Sind (Requisition of Land) Act, 1947, had been the subject of litigation in several previous cases. One of these cases is reported as Miran Khan and others v. Meharban Hussain and others (P L D 1956 Kar. 338). A Division Bench of the High Court, of which I was a member at the time, declared that Act to be ultra vires of the Government of India Act, 1935 in so far as it failed to provide for compensation to tenants whose premises may be requisitioned. Another Division Bench of the High Court had held in another case Mrs. Dina Sohrab Katrak v. S. Ashhad Ali and the Chief Commissioner of Karachi (P L D 1956 Sind 331) that the securing of accommodation for residence of servants of the Provincial Government did not fall within the definition of "public purpose" given in the Act. On the 21st March, 1956, the Governor-General of Pakistan issued an order under section 290-A of the Government of India Act, 1935, designated as G. G.'s Order I of 1956. This order was apparently designed to meet the situation created by the above two decisions. By this order, the Governor-General purported to extend the definition of "public purpose" in the Act so that it might include the securing of accommodation for the residence of officers of the Central or Provincial Governments or the Members of the Central Assembly of Pakistan. Section 3-A of the Act was repealed by the same order, but a saving provision was enacted to the effect that despite the repeal of this section, cases already decided or pending under that section, should be deemed to be cases dealt with under the amended Act. In section 4 of the Act, moreover, words were inserted so as to make it clear that they applied both to acquisition and requisition of property. The question of the scope of "public purpose" does not arise in the instant case as the premises were requisitioned here for the purposes of the. Central Government and even the unamended definition of that term would have covered the case. The Order of the Governor-General was impugned in the High Court principally on the grounds that section 290-A of the Government of India Act, 1935, did not confer any power on the Governor-General to amend, repeal or add to any legislation and that, in any event, such power, if vested in the Governor-General, was tantamount to delegation of legislative power. It was further objected that even if it be assumed that the Governor-General had legislative powers, he could only enact laws prospectively and not with retrospective effect. The point was also raised that the Act, having been declared ultra vires of the Constitution Act, was dead law and no amendment could be made to that Act at all. The High Court found that the power conferred on the Governor-General by section 92-A of the Government of India Act was of a legislative character and did not amount to delegation of legislative power. With regard to the Act, it was declared that though by the previous decision of the High Court it had been found to be ultra vires in so far as it failed to provide for compensation to tenants whose premises may be requisitioned, this did not invalidate the' Act as a whole and, consequently, the Act was susceptible of legislative amendment. It was found at the same time that the Governor-General could not give retrospective effect to the impugned amendments as he purported to do. In the result, it was declared that if any requisition order had been made before the date of the impugned amendment, in the case of a tenant, such an order would be illegal and inoperative. A writ was accordingly issued in favour of respondents (1) and (3) restraining the Pakistan Government from taking over the premises in question. The correctness of the decision in Miran Khan and others v. Meharban Hussain and others was canvassed on behalf of the appellants at the time of the hearing. The suggestion was made that the Act did not fail to provide for compensation to tenants and, consequently, that decision proceeded on a wrong assumption. If that be the case, clearly the Act did not require an), amendment at all. Even if it be assumed, consequently, for the sake of argument, that the Governor-General was not competent to legislate at all, the position that emerges is that the requisition could not be challenged as invalid. The same result would follow if the Governor-General had the necessary power of legislation and also to make an amendment to the Act with retrospective effect. This Court did not hear arguments on the competency of the Governor-General to make the impugned changes in the law. The majority is inclined to the view that the unamended Act itself was not open to exception on the ground of failure to provide for compensation to tenants. I regret, I have not been able to share the majority opinion in this case and I say so with profound respect for that opinion which has all the weight of authority and experience behind it. It may be conceded that the Act does not specify to whom the compensation would be payable after assessment under section 3-A of the Act. It is admitted that the compensation fell to he determined under that section alone, under the unamended Act. The material part of that section reads as follows :

"3-A (1) Where any immovable property is requisitioned under the provisions of this Act, there shall be paid compensa tion which shall consist of a fair rent of the property, determined by the Controller in accordance with the provisions of the Sind Rent Restriction Act, 1952". At first sight, the suggestion that as, on the face of the section, the exclusion of tenants from a share in the assessed compensation, cannot be spelt out of the language, the Court should find in favour of its validity, is certainly attractive. I am conscious that a .legislative enactment should not be struck out as ultra vires, lightly, without a serious effort to explore all avenues leading to its preservation. But after anxious consideration I have been unable to revise the view I expressed in Miran Khan v. Meharban Hussain. The law merely enjoins payment of compensation to the extent of "fair rent" determined in accordance with the provisions of the Sind Rent Restriction Act, 1952. "Fair rent" is defined in section 2 (2) of that Act. Section 6 of that Act further provides that the landlord cannot claim by way of rent in excess of the "fair rent" determined by the Controller from any tenant. In my humble judgment, it is clear that the landlord is entitled in law, under that section, to claim every single pie of the fair rent thus assessed. It is inconceivable that he would claim any lesser amount. I presume that the rent payable by the tenants in this case to the landlord, was not lower than the fair rent assessable under the Sind Rent Restriction Act, 1952. At the assessment end, the assessing authority is confined to the limits of "fair rent". At the receiving end, the whole of the "fair rent" is legally claimable by the landlord alone to the exclusion of tenants in these circumstances the inference follows that nothing would be left for distribution to the tenants whose tenancy rights have been expropriated. That tenancy rights or property rights falling within the protection of section 299 of the Government of India Act, 1935, which was the Constitution Act in force at the relevant time, admits, I think, of no doubt. Subsection (5) of that section is itself sufficiently, explicit on that point. For requisition of premises involving expropriation of these rights, therefore it was incumbent on the legislative authority to make definite provision fort compensation for the benefit of such right-holders. The deprivation of tenants in respect of compensation may not be explicitly mentioned in section 3-A of the Sind (Requisition of Land) Act, 1947, but reading that section with section 6 of the Sind Rent Restriction Act, 1952, there seems to be no escape from the conclusion that by necessary implication or intendment, com pensation to tenants was not at all within the contemplation of the legislature. I, therefore, find that the unamended Act was within the mischief of section 299, Government of India Act, and to the extent indicated, would be ultra vires the Constitution Act of 1935. This in my opinion would have been the position if the laws had stood as it was when the judgment in Miran Khan v. Meharban Hussain was rendered in the High Court, viz., on the 2nd October 1955. There is however a sequal to the story. Subsection (4A) was inserted in section 299 of the Government of India Act, 1935, by the Government of India (Second Amendment) Act. 1951. The latter Act which was invalidated by the decision of the Federal Court in Tamizuddin Khan's case ((1955) F C R 155 =P L D 1955 F C 240) for lack of assent of the Governor-General, was validated with retrospective effect by the Validation of Laws Act, 1956, which received the assent of the Governor-General on the 2nd October 1955. Subsection (4A) of section 299 of the Constitution Act of 1935, as thus enacted protected a law inter alia relating to compulsory acquisi tion, for public purposes, of any land, from attack under subsection (2) of that section, provided that such law had received the assent of the Governor-General or in the case of a Provincial Law, had been reserved for the purpose of obtaining such assent within a period of three years next after the establishment of the Federation. In terms this saving provision did not cover Sind Act X of 1948 which had inserted section 3-A in the impugned Sind Act of 1947, as that Act had neither received the assent of the Governor-General nor had it been reserved for such assent, at any time. But subsection (4A) of section 299 of the Constitution Act of 1935 was substituted by a different provision by the Validation of Laws Act, 1956, which came into force on the 29th February 1956 when it received the assent of the Governor General. By enacting that the substitution shall be deemed to have always been there, the new provision was given the force of law retrospectively and thus provided a blanket protection for all laws of the nature mentioned in subsection (2) of section 299, against the mischief of that subsection, provided that "such law has been made or passed within a period of 5 years next after the establishment of the Federation". Sind Act X of 1948 thus became immune from all possible objections grounded on subsection (2) of section 299 and as has been pointed out by my, learned brother, Cornelius, J., this immunity was continued by clause (3) of Article 15 of the late Constitution which was enacted with effect from the 23rd March 1956. This amendment of the law was not brought to the notice of the High Court. It had become effective retrospectively before the matter was disposed of there. The vires of the impugned Act must consequently be regarded as above cavil and I there fore agree that the appeal be allowed. It is but fair that the parties should be left to bear their own costs as the point relating to the amendment of the Constitution Act of 1935 was not raised in the High Court or argued at the Bar before us. A. H. Appeal allowed.