1999 PLP 88 (SCMR)

AJMAL MIAN, J.

By this common order, we intend to dispose of the above two petitions which are directed against a common judgment dated 24-4-1996 passed by a learned Single Judge of the High Court of Sindh in First Rent Appeals Nos. 152 and 158 of 1992, filed by the present two petitioners against the orders of ejectment dated 27-11-1992 of the learned Senior Civil Judge/Rent Controller, Karachi (East), in Rent Cases Nos. 1005 and 1006 of 1989 granting ejectment on the ground of personal requirement of the respondent/landlady and her son in respect of the two shops, dismissing the same by affirming the above orders of the Rent Controller. The petitioners have therefore, filed the present two petitions for leave to appeal.

2. In support of the above two petitions Mr. Rizwan Ahmed Siddiqui, learned, Advocate Supreme Court appearing for the petitioners has firstly contended that the respondent filed the ejectment applications after about two months from the date of purchase and, therefore, bona fide personal requirement cannot be inferred. The above contention is devoid of force, firstly, that the property was purchased by the respondent in July, 1988, notice under section 18 of the Sindh-Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, was served in August, 1989, and the ejectment applications were filed in October, 1989, i.e., after about one year and four months from the date of purchase and, therefore, it is not factually correct to urge that the same was filed after about two months. Secondly, the time of filing of ejectment applications itself cannot negate the personal bona fide requirement if it is otherwise proved by the landlord.

3. Then it was urged by Mr. Rizwan Ahmed Siddiqui that the respondent failed to prove that factually she needed the shops. There is no doubt that a landlord is supposed to prove his bona fide personal requirement in respect of the premises of which he seeks ejectment and that requirement should be reasonable inter alia as to the area. In the present case, two Courts below have concluded that the respondent was able to prove that she needed one shop for herself for opening a boutique and the other shop for her son, who had no job. This concurrent finding does not suffer from any infirmity as to warrant interference by this Court.

4. It was lastly urged by Mr. Rizwan Ahmed Siddiqui that therespondent is a lady of about 62 years of age and, therefore, it is not physically possible for her to run a boutique. There is nothing on record from which it can be inferred that she is not capable of running a boutique. It is not uncommon in the large cities like Karachi that women are running boutiques successfully.

5. The above petitions have no merits. Leave is, therefore, refused. However, at the request of the learned counsel for the petitioners. Mr. Rizwan Ahmed Siddiqui, the petitioners are allowed one year's time from today on the condition that they shall pay rent regularly and that in case they fail to hand over the vacant possession on the expiry of above period of one ~ear, the learned Rent Controller shall issue a writ of ejectment without any further notice to the petitioners. A.A./M-158/S Leave refused [Supreme Court of Pakistan] Present: Ajmal Mian, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ M.P. KHAN and another

Petitioners versus Justice (Retd) MUHAMMAD RAFIQ TARAR and others

Respondents Civil Petitions Nos-681-L, 903-L and 904-L of 1998, decided *on 23rd June, 1998. (On appeal against the judgment/order dated 9-2-1998 in W. P. No. 29141/97 and 29-12-1997 and 24-12-1997 in W.P.No.29648/97 and 29405/97).

Second Sched., para. 4 & Art. 185(3)

Candidates for office of the President

Valid nomination papers in respect of candidate for office of President required that the same should be proposed and seconded by member of electoral college

Petitioner's nomination papers were not submitted as required by the Constitution, therefore, Chief Election Commissioner rightly rejected the same

Petitioners while appearing in person could not substantiate their case before Court and failed to point out any illegality in impugned orders so as to justify interference by Court. Petitioners in person. Nemo for Respondents, Date of hearing: 23rd June, 1998 SH. RIAZ AHMED, J.-This order shall dispose of C.P.L.A. No.681 L of 1998 filed by M.P. Khan and C.P.L * As. Nos.903-L and 904-L of 1998 filed Major (Retd.) Faisal Naseer Khan seeking leave to appeal against the judgment and order dated 9-2-1998 delivered by a Full Bench consisting of three learned Judges of the Lahore High Court whereby the order dated 18-12-1997 passed by the Acting Chief Election Commissioner rejecting the nomination papers filed by the petitioners to contest the election to the office of the President of Pakistan was affirmed and the writ petitions filed by the petitioners were dismissed.

2. The facts in brief giving rise to the institution of these petitions are that consequent to the resignation of Mr. Farooq Ahmad Khan Leghari, the then President of Pakistan, the office of the President of Pakistan fell vacant. To fill the vacancy s~ occurring the Acting Chief Election Commissioner in exercise of the powers conferred upon him by Article 41(3) read with Second Schedule to the Constitution of the Islamic Republic of Pakistan proceeded to conduct the election. The petitioners also filed their nomination papers without being proposed or seconded by any over and, thus, during the scrutiny of the nomination papers the Acting Chief Election Commissioner rejected the said nomination papers being violative of para. 4 of the Second Schedule to the Constitution. Para. 4 of the Second Schedule reads as under:-- "

4. At any time before noon on the day fixed for nomination any member of the Majils-e-Shoora (Parliament) or of a Provincial Assembly may nominate for election as President of person qualified for election as 'President by delivering to the Presiding Officer a nomination paper, signed by himself as proposer and by another member of the Majlis-e-Shoora (Parliament) or, as the case may be, Assembly as seconder, together with a statement signed by the person nominated that he consents to the nomination: Provided that no person shall subscribe, whether as proposer or as seconder, more than one nomination paper at any one election. " It may be stated here that under Article 41 of the Constitution, the electoral college to elect the President of Pakistan consists of members of the Majlis-e Shoora (Parliament) as well as four Provincial Assemblies, therefore, the name of a candidate is required to be proposed and seconded by a voter, who could only be either a member of the Majils-e-Shoora (Parliament) or a member of any of the four Provincial Assemblies. However, an elaborate procedure has been prescribed to hold election to the office of the President, which need not be dilated upon. Suffice it would be that for alid nomination papers in respect of a candidate for the office of the President, it is essential that the same should be proposed and seconded by a member of the electoral college as aforesaid.

3. Since the petitioners' nomination papers were not submitted as required by the Constitution, the Acting Chief Election Commissioner rightly rejected the same.

4. Both the petitioners, who appeared in person, could not substantiate their case before us and failed to point out any illegality in the orders impugned so as to justify interference by this Court. It is further pertinent to mention that the petitions filed by Major (Retd.) Faisal Naseer Khan (C.P. No.903-L & 904-L of 1998) are also barred by time.

5. Resultantly, all the three petitions having no merit and substance are hereby dismissed. A.A./M-203/S Petitions dismissed. [Supreme Court of Pakistan] Present: Ajmal Mian, C3., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ. MUHAMMAD AFZAL

Appellant versus KARACHI ELECTRIC SUPPLY CORPORATION and 2 others

Respondents Civil Appeal No. 1513 of 1998, decided on 31st March, 1998. (On appeal from the judgment dated 22-10-1997 of the Federal Service Tribunal, Islamabad in Appeal No.314-K of 1997). (a) Service Tribunals Act (LXX of 1973)

S. 2-A [as incorporatcd by Service Tribunals (Amendment) Act (XVII of 1997)]

Constitution of Pakistan (1973), Art. 212(3)

Employee of Corporation

Termination of -services on ground of downsizing staff in the Corporation

Service Tribunal dismissed appeal of employee on the ground that since S.2-A which was incorporated in Service Tribunals Act, 1973 became effective from 10-6-19 7 and cause of action to employee had accrued prior to the said date, appeal was not competent

Validity

Leave to appeal was granted to consider whether in view of pronouncement by Supreme Court in PLD 1969 SC 187 and 1996 SCMR 237, view of Service Tribunal was correct. Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 and Malik Gul Hasan & Co and 5 others v. Allied Bank of Pakistan 1996 SCMR 237 rel. (b) Service Tribunals Act (LXX of 1973)

S. 2-A [as added by Service Tribunals (Amendment) Act (XVII of 1997)]-- Employee of Corporation

Change of forum for redress of grievance

Matters relating to procedure

Retrospective operation

Cause of action to employee had accrued prior to date of incorporation of amended S.2-A, in Civil Servants Act

Appeal before Service Tribunal in terms of S.2-A (as amended)-- Competency

Matters relating to remedy, mode of trial, manner of taking evidence, being all matters pertaining to procedure, same would be effective retrospectively

Change of forum being matter of procedure, Service Tribunal was not justified in non-suiting employee inasmuch as on specified date when employee presented his appeal before Service Tribunal, the same had jurisdiction in the matter

Question whether employee was entitled to any relief was question of merit

Case was remanded by Supreme Court to Service Tribunal for decision afresh on merits. Adrian Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Malik Gul Hasan & Co. and 5 others v. Allied Bank of Pakistan 1996 SCMR 237; Federation of Pakistan v. Muhammad Siddiq. PLD 1981 SC 249 and The Chairman, PIAC and others v. Nasim Malik PLD 1990 SC 951 ref. Raja Muhammad Bashir, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Appellant. Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.

1. Date of hearing: 31st March, 1998. AJMAL MIAN, C.J.

This is an appeal with leave of this Court against the judgment, dated 22nd October, 1997 of the learned Federal Service Tribunal, Islamabad in Appeal No.319-K of 1997 filed by the appellant against order dated 5-3-1997 terminating his services on the ground of down sizing the staff in the respondent-Corporation,, dismissing the same on the ground that section 2(A) of the Service Tribunals Act, 1973 which was incorporated by Act, No.XVII of 1997 was effective from 10-6-1997 which will be the date of amended Act) and since the cause of section to the appellant had accrued prior to the above date, his appeal was not competent. Leave to appeal was granted to consider the question as to whether in view of pronouncement by this Court, inter alia, in the case of Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) and Malik Gul' Hasan & Co. and 5 others v. Allied Bank of Pakistan (1996 SCMR 237), view of Federal Service Tribunal was correct.

2. In support of above appeal, Mr. Raja Muhammad Bashir learned counsel for the appellant had vehemently urged that as the change of forum is procedural matter, section 2-A incorporated in the Service Tribunals Act, 1973 was applicable retrospectively. In support of the above submission, he has relied upon the following cases:- (i) Adrian Afzal v. Capt, Sher Afzal (PLD 1969 SC 187). (ii) Malik Gul Hasan & Co,, and 5 others v. Allied Bank of Pakistan (1996 SCMR 237). (iii) Federation of Pakistan v. Muhammad Siddiq. (PLD 1981 SC 249). (iv) The Chairman PIAC and others v, Nasim Malik (PLD 1990 SC 951) On the other hand, Mr. Raja Abdul Ghafoor, learned Advocate-on Record had contended that since the preamble to the amending Act provides that the amending Act shall come into force with immediate effect and, therefore, retrospective effect cannot be given to above section 2-A of the Act. However, he has not cited any case-law contrary to what has been held, inter alia, in the case of Adnan Afzal v. Capt. Sher Afzal (supra). It will sufice to reproduce the relevant passage from the above judgment which was authored by Hamoodur Rahman, C.J. which reads as follows:-- "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 procedures, Crawford to takes the view that questions relating to jurisdiction over a cause 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 retrospective being a matter of procedure only. Nevertheless it must be pointed out that if in this process any existing rights are affected or the giving or retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour. an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive applications will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retrospectively." A perusal of the abovequoted extract from the judgment clearly shows that the matter relating to the remedy, the mode of trial, the manner of taking evidence and forms of action which are all matters pertaining to procedure. Reliance has also been placed on Federation of Pakistan v. Muhammad Siddiq (PLD 1981 SC 249) which is in line with the view taken in the above judgment. Subject, judgments of this Court referred hereinabove are also in line with the above judgment in the case of Adnan Afzal v Sher Afzal (supra).

3. We, therefore, hold that the Tribunal was not justified in non-suiting the appellant as on 10-9-1997 when the appellant presented his appeal before the Service Tribunal, admittedly, the Tribunal had the jurisdiction in the matter. The question whether the appellant is entitled to any relief was a question on merits. We would, therefore, allow the above appeal with no order as to costs. A.A./M-204/S Appeal accepted.